Evoshield XVT LUXE FITTED BATTING HELMET XL (WTV7210
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EvoShield XVT LUXE FITTED BATTING HELMET XL (WTV7210*XL), XVT LUXE FITTED BATTING HELMET XXL (WTV7210*2X), XVT LUXE FITTED BATTING HELMET WITH BASEBALL FACEMASK XL (WTV7220*XL), XVT LUXE FITTED BATTING HELMET WITH BASEBALL FACEMASK XXL (WTV7220*2X), XVT LUXE FITTED BATTING HELMET WITH SOFTBALL FACEMASK XL (WTV7230*XL), and XVT LUXE FITTED BATTING HELMET WITH SOFTBALL FACEMASK XXL (WTV7230*2X) (collectively, the “XVT Luxe”) GIFT CARD PROGRAM (“PROGRAM”) TERMS AND CONDITIONS IMPORTANT NOTE: SECTION III CONTAINS A BINDING ARBITRATION AGREEMENT and CLASS ACTION WAIVER THAT MAY AFFECT YOUR RIGHTS CONCERNING DISPUTES BETWEEN YOU AND WILSON UNDER THE PROGRAM. PLEASE READ IT. THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT (“Agreement”) BETWEEN YOU AND WILSON SPORTING GOODS CO. (“Wilson”). BY SELECTING THE “SEND” BUTTON OR BY SUBMITTING YOUR XVT LUXE FOR A VOUCHER OR GIFT CARD YOU ARE INDICATING THAT YOU HAVE READ THE TERMS OF THIS AGREEMENT, THAT YOU UNDERSTAND THEM, AND THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PARTICIPATE IN THIS PROGRAM. I. Eligibility Your eligibility in the Program is subject to the following conditions: 1. You must be the original purchaser of the XVT Luxe model batting helmet with a valid proof of purchase from an authorized EvoShield dealer (i.e., this Program does not extend to purchases made from: (i) auction sites such as eBay or Craigslist, (ii) unauthorized dealers selling via third party marketplaces such as Amazon Marketplace, or (iii) dealers selling altered, doctored or counterfeit products); 2. You must complete your claim, including sending in your XVT Luxe model bat to EvoShield, by the later of December 31, 2020 or the expiration of the warranty period applicable to your batting helmet under the Wilson Limited Warranty (“Limited Warranty”); and, 3. You must otherwise meet the eligibility requirements of the Limited Warranty. The terms of the Limited Warranty are incorporated herein by reference. Note - Wilson reserves the right to refuse service to any person who, in Wilson’s sole discretion, abuses its products or the Program. II. General Release Conditional upon Wilson’s delivery of: (i) a Wilson.com voucher or gift card to the email address that you submitted to EvoShield in the amount of $65.99 (or approximate equivalent amount) for your EvoShield XVT Luxe Fitted Batting Helmet (WTV7210*XL/ WTV7210*2X) return; or, (ii) a Wilson.com voucher or gift card to the email address that you submitted to EvoShield in the amount of $79.99 (or approximate equivalent amount) for your EvoShield XVT Luxe Fitted Batting Helmet with Baseball Facemask (WTV7220*XL/WTV7220*2X) return; or, (iii) a Wilson.com voucher or gift card to the email address that you submitted to EvoShield in the amount of $79.99 (or approximate equivalent amount) for your EvoShield XVT Luxe Fitted Batting Helmet with Softball Facemask (WTV7230*XL/WTV7230*2X) return. you and your heirs, affiliates, successors, assigns, attorneys, and representatives (collectively, the “Releasing Parties”) hereby release Wilson, and its affiliates, shareholders, successors, and assigns, and each of their respective current and former officers, directors, employees, agents, suppliers, dealers, distributors, resellers, retailers, attorneys, insurers, and representatives (the “Released Parties”), from any and all complaints, charges, liabilities, obligations, grievances, promises, agreements, suits, costs, debts, and expenses, and causes of action of any nature, whether at law or in equity, and whether accrued, inchoate, contingent, known or unknown, which the Releasing Parties have, had or may have against the Released Parties related to your XVT Luxe or your purchase thereof. In addition, the Releasing Parties shall indemnify Wilson for any costs incurred by the Released Parties, including reasonable attorney fees, related to any actions taken by the Releasing Parties which are inconsistent with this Release. CALIFORNIA RESIDENTS - You and Wilson understand and expressly agree that this Agreement extends to all claims of every nature and kind, known and unknown, arising from or attributable to this matter. Any and all rights granted to any of the parties under California Civil Code § 1542 are hereby expressly WAIVED. California Civil Code § 1542 reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” III. Binding Arbitration Agreement; Class Action Waiver (U.S. Residents Only) SECTION II ABOVE PROVIDES A GENERAL RELEASE OF CLAIMS OR CONTROVERSIES RELATED TO YOUR XVT LUXE AND THIS PROGRAM. TO THE EXTENT THAT ANY SUCH CLAIM OR CONTROVERSY IS NOT DEEMED RELEASED UNDER SECTION II ABOVE DESPITE THE INTENT OF YOU AND WILSON, THEN THE TERMS OF THIS SECTION III SHALL GOVERN ANY SUCH REMAINING CLAIM OR CONTROVERSY. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, UNLESS YOU HAVE BROUGHT AN ELIGIBLE INDIVIDUAL CLAIM IN SMALL CLAIMS COURT, ANY CONTROVERSY OR CLAIM RELATING IN ANY WAY TO YOUR XVT LUXE, INCLUDING ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, A BREACH OF THIS AGREEMENT, OR THE XVT LUXE’S SALE, CONDITION, CERTIFICATION, DE-CERTIFICATION OR PERFORMANCE, WILL BE SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION AND CONDUCTED BY A SINGLE ARBITRATOR APPOINTED BY THE AMERICAN ARBITRATION ASSOCIATION, IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND ITS SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES. You may learn more about the American Arbitration Association and its rules for arbitration by visiting www.adr.org or by calling 800-778-7879. Since this warranty concerns a transaction in interstate or international commerce, the Federal Arbitration Act will apply. To the greatest extent permitted by applicable law, the filing fees to begin and carry out arbitration will be shared between you and Wilson, but in no event will your fees ever exceed the amount allowable by the American Arbitration Association, at which point Wilson will cover all additional administrative fees and expenses. Wilson waives its right to recover attorneys’ fees in connection with any arbitration under this warranty. If you are the prevailing party in an arbitration to which the Supplementary Procedures for Consumer-Related Disputes applies, then you are entitled to recover attorneys’ fees as the arbitrator may determine. The dispute will be governed by the laws of the state or territory in which you resided at the time of your purchase (if in the United States). The place of arbitration will be Cook County, Illinois, or your county of residence (if in the United States). The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator will not award consequential damages, and any award will be limited to monetary damages and will include no equitable relief, injunction, or direction to any party other than the direction to pay a monetary amount. Judgment on the award rendered by the arbitrator will be binding and final, except for any right of appeal provided by the Federal Arbitration Act, and may be entered in any court having jurisdiction. Except as may be required by law, neither you nor Wilson nor an arbitrator may disclose the existence, content, or results of any arbitration under this warranty without the prior written consent of you and Wilson. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. WILSON AND YOU AGREE THAT NO PARTY WILL HAVE THE RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED AS A CLASS ACTION, A PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING. Exceptions to Binding Arbitration Agreement and Class Action Waiver IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, THEN: you may pursue an individual claim in small claims court in your county of residence (if in the United States) or in Cook County, Illinois. In such case the provisions of the section titled “Binding Arbitration Agreement; Class Action Waiver (U.S. Residents)” will not apply, but the rules and limitations of the small claims court shall apply. IV. Incorporation of Limited Warranty You and Wilson agree that terms of the Limited Warranty are incorporated herein by reference. To the extent of any conflict between terms of this Agreement and those of the Limited Warranty, the terms of this Agreement shall govern. V. Damages for Your Breach of this Agreement. Without limiting any provision of this Agreement or any rights or remedies of Wilson, you agree that if you file any claims against Wilson or recover any damages from Wilson in any lawsuit arising from or relating to your XVT Luxe or your purchase thereof, you will return to Wilson any and all monies and benefits received by you from Wilson under the Program. VI. Interpreting the Agreement. All parts of this Agreement apply to the maximum extent permitted by the relevant law; you may have greater rights in your jurisdiction of residence. If any provision of this Agreement is found to be illegal or unenforceable (other than the class action waiver), that provision will be severed with the remainder of the Agreement remaining in full force and effect. If the class action waiver is found to be unenforceable, then the entire section titled “Binding Arbitration Agreement; Class Action Waiver (U.S.