General Terms and Conditions for Callaway Twitter Promotions
GENERAL TERMS AND CONDITIONS FOR
CALLAWAY® TWITTER® PROMOTIONS
1. Application of Rules:: These terms and conditions (“General Rules”) apply to all sweepstakes and contests sponsored by Callaway Golf Sales Company (“Callaway” or “Sponsor”) entered via Twitter.com (a "Callaway Twitter Promotion"), unless modified or superseded by the official rules posted for a Callaway Twitter Promotion (“Official Rules”). The General Rules and Official Rules (collectively, the “Promotion Terms”) form a contract, so read them carefully before participating. In the event that any provision of the Official Rules conflicts with any provision of these General Rules, the terms of the Official Rules shall prevail with respect to such matter. Sponsor reserves the right in its sole discretion to interpret the rules of each Callaway Twitter Promotion, and such interpretation shall be binding upon all participants. Callaway Twitter Promotions are void where prohibited or restricted.
2. Agreement to Be Bound: By entering a Callaway Twitter Promotion, each entrant (“Entrant”) agrees to be bound by the Promotion Terms. The details and requirements for Entry or participation in any Callaway Twitter Promotion shall be provided by Callaway from time to time, in the discretion of Callaway. Each Entrant must follow the directions provided by Callaway and otherwise act in accordance with the Promotion Terms to be eligible to receive a prize in connection with any Promotion.
3. Eligibility: Entrants must be at least 18 years of age (or legal age of majority in Entrant’s state of residence) to participate in a Callaway Twitter Promotion. Each Entrant must be a follower of @CallawayGolf on Twitter.com to be eligible to participate. Employees, officers, directors, representatives advertising and promotion agencies, and agents of Sponsor and its parent company, and each of their respective subsidiaries and affiliated companies and their immediate families and those living in their same household, whether or not related, are not eligible for any Callaway Twitter Promotion. Callaway Twitter Promotions are restricted to legal residents of the place of residence set forth in the Official Rules. If no place of residence is set forth in the Official Rules, the Callaway Twitter Promotion is void (i) outside of the 50 United States and D.C.; (ii) in Puerto Rico and all U.S. territories and possessions; and (iii) where prohibited by law. NO PURCHASE NECESSARY. A PURCHASE WILL NOT INCREASE CHANCE OF WINNING.
4. Entries: Unless otherwise stated in the Official Rules, there is a limit of one Entry (“Entry”) per person per Contest. No illegible, incomplete, forged or altered Entries will be accepted. All Entries become the exclusive property of the Sponsor and will not be returned. Any person who attempts to participate with multiple Twitter.com accounts, e-mail and/or street addresses, under multiple identities or uses any device or artifice to submit multiple Entries in violation of the Entry limitation will be disqualified. In case of dispute, an on-line Entry will be deemed made by the authorized account holder of the Twitter.com account used to submit Entry. “Authorized account holder” is defined as the natural person who is assigned to a Twitter.com account by Twitter. Proof of submission of an Entry form does not constitute proof of receipt.
Callaway Twitter Promotions are not sponsored, endorsed or administered by Twitter. Entrant understands Entries are being provided to Sponsor and not to Twitter.
Any questions, comments or complaints regarding a Callaway Twitter Promotion shall be directed to Sponsor and not to Twitter. By submitting an Entry, Entrant agrees that submission of an Entry is gratuitous and made without restriction, and will not place Sponsor under any obligation. Entrant further agrees that Sponsor is free to use or otherwise disclose any ideas contained in an Entry on a non-confidential basis to anyone or otherwise use the ideas without any additional compensation to Entrant. Entrant acknowledges that, by acceptance of an Entry, Sponsor does not waive any rights to use similar or related ideas previously known to Sponsor, or developed by its employees, or obtained from sources other than Entrant. BY SUBMITTING AN ENTRY, ENTRANT ACKNOWLEDGES THAT HIS/HER ENTRY MAY BE POSTED ON THE CALLAWAY TWITTER PAGE, IN SPONSOR’S DISCRETION. Submission of an Entry, hereby grants the Promotion Parties (defined below), an exclusive, irrevocable, unlimited, worldwide, perpetual, sub-licensable license and right to, copy, distribute, publish, display and otherwise use Entrant’s Entry for purposes of the Callaway Twitter Promotion or for any advertising or publicity on behalf of the Sponsor, without further compensation or obligation to Entrant.
By submitting an Entry, Entrant hereby warrants and represent that the Entry confirms to the Promotion Terms. Entries must not be obscene or indecent; shall not be sexually explicit or suggestive, profane or pornographic, violent or derogatory of any ethnic, racial, gender, religious, professional or age group; shall not promote alcohol, illegal drugs, tobacco, firearms/weapons (or the use of any of the foregoing), any activities that may appear unsafe or dangerous, or any particular political agenda or message; shall not be offensive, endorse any form of hate or hate group; shall not defame, misrepresent or contain disparaging remarks about Sponsor or its products or services, or other people, products or companies; shall not communicate messages or images inconsistent with the positive images and/or goodwill to which Sponsor wishes to associate; shall not invade privacy or other rights of any person, firm or entity; shall not in any other way violate any applicable federal, state or local laws or regulations or the terms of service of Twitter; shall not infringe any third party trademarks or infringe copyrighted material; and shall not contain any personal identification, such as names, email addresses or street addresses except as specifically required by the Official Rules. Entries that are not in compliance with Promotion Terms, as determined by Sponsor in its sole discretion, may be disqualified. ENTRIES POSTED TO TWITTER ARE NOT EDITED BY SPONSOR AND ARE THE VIEWS/OPINIONS OF THE INDIVIDUAL ENTRANT AND DO NOT REFLECT THE VIEWS OF SPONSOR IN ANY MANNER. Any waiver of any obligation hereunder by Sponsor does not constitute a general waiver of any obligation to Entrants. Sponsor, at its sole and absolute discretion, reserves the right to remove and disqualify any Entry that is in violation of these Promotion Terms without notice or further obligation to Entrant. Entries will not be returned and Entrants will not be notified of receipt of their Entries. Entries are accepted only in accordance with these Promotion Terms.
Sponsor reserves the right to, and may or may not, monitor/screen Entries prior to posting them to Callaway’s home page on Twitter.com. By entering, Entrant acknowledges that Sponsor has no obligation to use or post any Entry submitted. By submitting an Entry, Entrant warrants and represents that it: (a) is Entrant’s original work, (b) has not been previously published, (c) has not won previous awards, (d) does not infringe upon the copyrights, trademarks, rights of privacy, publicity or other intellectual property or other rights of any person or entity; (e) that Entrant has obtained permission from a person who's name, likeness or voice is used in the Entry and (f) and that publication of the Entry via various media including Web posting, will not infringe on the rights of any third party rights. Any such entrant will indemnify and hold harmless, Sponsor, Twitter and the Promotion Parties from any claims to the contrary. Any Entrant whose Entry includes likenesses of third parties or contains elements not owned by the Entrant (such as, but not limited to, depictions of persons, buildings, trademarks or logos) must be able to provide legal releases for such use including Sponsor’s use of such Entry, in a form satisfactory to Sponsor, upon request, prior to award of prize and/or naming of Entrant as a prize winner.
By accepting a prize, each winner agrees that his/her Entry will be deemed a Work Made For Hire for Sponsor under the Copyright laws of the United States, but if it cannot be so deemed, then the winner irrevocably assigns and transfers to Sponsor all of his/her right, title and interest in and to his/her Entry, including all but not limited to all copyright and trademark rights which he or she may have, in the United States and worldwide, therein, for consideration, the receipt and sufficiency of which is hereby acknowledged. Winner hereby waives in favor of Sponsor, all rights of “Droit Moral” or “Moral Rights of Authors” or any similar rights or principles of law that Entrant may now or later have to their Entry. Sponsor reserves the right to alter, change or modify the winning Entry, in its sole discretion. Upon request of Sponsor, winner shall execute and deliver such additional instrument of assignment, as may be solely deemed by Sponsor, reasonably necessary to establish the ownership of record of the right, title and interest in and to the Entry and of the copyrights transferred and “Moral Rights of Authors” waived under these Official Rules. Should Sponsor fail to request the said assignment as stated, that shall not be deemed a waiver of Sponsor’s rights and Sponsor may at a later time request the assignment.
5. Rules Regarding the Award of Prizes: Taxes, fees and all other expenses not specified in the prize description in the Official Rules, if any are the sole responsibility of prize winners (regardless of whether the prize, in whole or in part, is used). The approximate retail value (“ARV”) of any prize is based on available information obtained by Sponsor and the value of any prize awarded to a prize winner may be reported for tax purposes as required by law. No substitution or transfer of prizes is permitted, except by Sponsor in its sole and absolute discretion.
Each prize winner may be required to sign an affidavit of eligibility and liability release and, where permitted, a publicity release. Prize may be awarded to an alternate winner if affidavit/release(s) is not returned within seven days of the date of first attempted notification (or within such other period as stated in the Official Rules). Failure to comply with this deadline may result in forfeiture of the prize and selection of an alternate winner. Return of any prize or prize notification as undeliverable may result in forfeiture of the prize and selection of an alternate winner. Each winning Entrant, by accepting a prize, grants to Sponsor and each of its respective designees the right to publicize Entrant’s name, address (city and state of residence), photograph, voice, statements and/or other likeness and prize information for advertising, promotional and/or trade and/or any other purpose ("Winning Entrant Information") in any media or format now known or hereafter devised, throughout the world, in perpetuity, without limitation and without further compensation, consideration, permission or notification, unless prohibited by law. The releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
Sponsor will determine prize recipients in its sole and absolute discretion. Entrants who have received a prize from Callaway in connection with any promotion in the previous 30 days are not eligible to win a new prize. If a Promotion prize recipient is determined to be ineligible, Callaway may, in its sole and absolute discretion, not give away the prize or may give the prize to another eligible Entrant. For Callaway Twitter Promotions, Entrants may be required to privately (through Twitter direct message, email, or other secure, private means) provide Entrant’s name, address, age and other personal information necessary to receive the prize, if Entrant is selected as a Callaway Twitter Promotion prize recipient. Callaway Twitter Promotions are subject to all applicable federal, state and local laws, rules or regulations and all Promotion Terms.
6. Sponsor’s Interpretation is Final: The interpretation of the Promotion Rules and decisions of Sponsor, in its sole discretion, are final and binding on all matters. Sponsor’s computer is the official time keeping device of for Callaway Twitter Promotions.
7. Disqualification: Sponsor, in its sole discretion, may disqualify any Entrant from participation in or use of any or all portions of a Callaway Twitter Promotion, and refuse to award a prize, if Entrant engages in any conduct Sponsor deems to be improper, unfair or otherwise adverse to the operation of the Callaway Twitter Promotion or detrimental to other Entrants of the Callaway Twitter Promotion. Such improper conduct includes, without limitation, falsifying personal information required during Entrant registration or prize claim, violating any term or condition stated in the Promotion Terms, paying or bartering for Entries or votes, accumulating Entries or votes through methods such as automated computer scripts or any other programming techniques, allowing others to use Entrant's personal information for the purpose of accumulating Entries or votes, or intentionally trying to defraud, reverse engineer, disassemble or otherwise tamper with the computer programs in connection with the Callaway Twitter Promotion. Entrants agree that Sponsor may void any part of a prize that Entrant may have won and/or require the return of any part of a prize that Entrant may have won as a result of such improper conduct. Entrant further acknowledges that any forfeiture of a prize and/or return of a prize shall in no way prevent Sponsor from pursuing other avenues of recourse such as criminal or civil proceedings in connection with such conduct. WARNING: ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF A CALLAWAY TWITTER PROMOTION MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, SPONSOR RESERVES THE RIGHT TO SEEK DAMAGES OR OTHER REMEDIES FROM ANY SUCH PERSON(S) RESPONSIBLE FOR SUCH ATTEMPT TO THE FULLEST EXTENT PERMITTED BY LAW.
Entrants may not take actions that are negligent, injurious or reckless in pursuit of any prize offered in connection with a Callaway Twitter Promotion. Entrants who do not follow this rule or who otherwise participate in a Callaway Twitter Promotion in a negligent, dishonest, illegal or harmful manner will be disqualified from the Callaway Twitter Promotion. Entrants are solely responsible for any injuries or other damages that are caused from their behavior. Entrants agree to indemnify, release, discharge and hold harmless the Released Parties (defined below) from and against any and all claims, liability, losses, damages or injuries of any kind with respect thereto.
8. Integrity of Contest: If, for any reason, the Callaway Twitter Promotion is not capable of running as planned by reason of infection by computer virus, worms, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes which Sponsor, in its sole opinion believes could corrupt or affect the administration, security, fairness, integrity or proper conduct of the Callaway Twitter Promotion, Sponsor reserves the right at its sole discretion to cancel, terminate, modify or suspend the Callaway Twitter Promotion and select the winners from Entries received prior to the action taken or in such other manner as Sponsor may deem fair and appropriate. Sponsor, and its parent company and their respective affiliated and subsidiary companies and advertising and promotion agencies, officers, directors, employees and representatives (collectively, “Promotion Parties”), assume no liability and are not responsible for, and you hereby forever waive any rights to any claim in connection with, errors and/or ambiguity: (i) in the Callaway Twitter Promotion; (ii) in any related advertising or promotions of a Callaway Twitter Promotion; and/or (iii) in the Promotion Terms. In the event of any ambiguity(s) or error(s) in the Promotion Terms, Sponsor reserves the right to modify the Promotion Terms for clarification purposes or to correct any such ambiguity or error(s) without materially affecting the terms and conditions of the Callaway Twitter Promotion.
9. Entry Mishaps: The Promotion Parties assume no liability and are not responsible for, and Entrant hereby forever waives any rights to any claim in connection with, lost, late, incomplete, corrupted, stolen, misdirected, illegible or postage due Entries or mail, if applicable; or for any computer, telephone, cable, network, satellite, electronic or Internet hardware or software malfunctions, unauthorized human intervention, or the incorrect or inaccurate capture of Entry or other information, or the failure to capture any such information. The Promotion Parties are not responsible for any incorrect or inaccurate information, whether caused by registration information submitted by end users or tampering, hacking, or by any of the equipment or programming associated with or utilized in a Callaway Twitter Promotion, and assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to a Callaway Twitter Promotion. The Promotion Parties assume no liability and are not responsible for, and Entrant hereby forever waives any rights to any claim in connection with, injury or damage to any Entrants or to any other person's computer or property related to or resulting from participating in a Callaway Twitter Promotion or downloading materials in connection with a Callaway Twitter Promotion.
10. Use of Images & Third Party Rights: Entrant agrees that any photos submitted may be cropped or otherwise altered. Entrant certifies that Entrant is the creator of any photograph or image submitted as part of or in connection with an Entry, and Entrant has obtained the consent of all identifiable persons shown in any photograph or image for use by Sponsor.
11. Release & Indemnity: Each Entrant in a Callaway Twitter Promotion, including, without limitation, all prize winners, hereby releases and agrees to hold harmless the Promotion Parties from any and all liability for any injuries, loss or damage of any kind to person, including death, and property, arising in whole or in part, directly or indirectly, from acceptance, possession, use or misuse of a prize, participation in a Callaway Twitter Promotion and participation in any activity related to a Callaway Twitter Promotion. The Promotion Parties assume no liability and are not responsible for, and each Entrant hereby forever waives any rights to any claim in connection with, the selection and announcement of a prize winner, the distribution of a prize, the acceptance/possession and/or use/misuse of any part of a prize and/or any injury or damage to any Entrant's or third person's property related to or resulting from any part of a prize or any part of the Callaway Twitter Promotion. The releases hereunder are intended to apply to all claims, known, not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
12. Limitation of Liability: IN NO EVENT WILL THE PROMOTION PARTIES BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND, INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF AN ENTRANT’S ACCESS TO AND USE OF THE CALLAWAY TWITTER PROMOTION OR THE DOWNLOADING FROM AND/OR PRINTING MATERIAL DOWNLOADED FROM THE CALLAWAY TWITTER PROMOTION. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXCLUSION OF IMPLIED WARRANTIES SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO EVERY ENTRANT. EACH ENTRANT SHOULD CHECK ENTRANT’S LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS.
13. Disclaimer of Warranties: TO THE FULL EXTENT ALLOWED BY LAW, THE CALLAWAY TWITTER PROMOTION AND PRIZES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
14. Binding Arbitration: Any controversy or claim arising out of or relating to a Callaway Twitter Promotion shall be settled by binding arbitration in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for claimant), or at such other location as may be mutually agreed upon by the parties, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”) then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that the claimant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Callaway will pay as much of the claimant’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor Callaway shall be entitled to arbitrate their dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN THE ENTRANT’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. DO NOT ENTER THIS CONTEST IF YOU DO NOT AGREE TO HAVE ANY CLAIM OR CONTROVERSY ARBITRATED IN ACCORDANCE WITH THESE OFFICIAL RULES.
BY PARTICIPATING IN A PROMOTION, EACH ENTRANT AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE PROMOTION, OR ANY PRIZE AWARDED, WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL ANY ENTRANT BE PERMITTED TO OBTAIN ANY AWARD FOR, AND ENTRANT HEREBY KNOWINGLY AND EXPRESSLY WAIVES ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES, AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) ENTRANT'S REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND ENTRANT IRREVOCABLY WAIVES ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO EVERY ENTRANT.
15. Governing Law & Jurisdiction: The Promotion Terms and the Callaway Twitter Promotion are governed by US law and are subject to all applicable federal, state and local laws and regulations. All issues and questions concerning the construction, validity, interpretation and enforceability of the Promotion Terms, or the rights and obligations of Entrant and Sponsor in connection with the Callaway Twitter Promotion, shall be governed by, and construed in accordance with, the laws of the State of California, U.S.A., without giving effect to the conflict of laws rules thereof, and any matters or proceedings which are not subject to arbitration as set forth in Section 14 of these General Rules and/or for entering any judgment on an arbitration award, shall take place in the State of California, in the City of San Diego.
17. Trademarks: All trademarks are the property of their respective owners.
Sponsor: Callaway Golf Sales Company, 2180 Rutherford Road, Carlsbad, CA 92008
Effective as of May 3, 2012