you and Aftermarket Performance Group and its corporate affiliates (the “Company”),
for the use of the TrailRecon.com website (“the “Website”), as well as
all related websites, networks, embeddable widgets, downloadable software,
mobile applications (including phone, tablet, and other applications), and
other services provided by us and/or on which a link to these Terms is
displayed (collectively, the “Services”).
PLEASE READ THESE TERMS CAREFULLY BEFORE YOU USE THE
SERVICES. BY USING THE SERVICES YOU
ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM. YOUR
ATTENTION IS SPECIFICALLY DRAWN TO THE LEGAL DISPUTES PROVISION IN SECTION 21
BELOW, WHICH PROVIDES THAT YOU MAY BE REQUIRED TO RESOLVE ANY CLAIM OR DISPUTE
THROUGH ARBITRATION. CERTAIN RIGHTS THAT
YOU MAY HAVE IF YOU WENT TO COURT MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE
MORE LIMITED. YOU SHOULD CONSULT LEGAL
COUNSEL TO DETERMINE WHETHER THIS LEGAL DISPUTES CLAUSE IS APPROPRIATE FOR
YOU. YOU CAN OPT OUT OF THIS LEGAL
DISPUTES CLAUSE BY FOLLOWING THE INSTRUCTIONS IN SECTION 21.
1.ACCEPTANCE OF THE TERMS.
1.1.Please read these Terms carefully before you use the
using the Services, you signify that you have read, understand, and agree to be
terms, conditions, and policies referenced in these Terms and/or available by
hyperlink. If you do not agree to these Terms, you must not access or use the
1.2.The Services are not intended for users younger than 18. If you are
not at least 18, you must not access or use the Services. By agreeing to these
Terms, you represent and warrant to us: (i) that you are at least 18 years of
age; (ii) that you have not previously been suspended or removed from the
Services; and (iii) that your registration and your use of the Services is in
compliance with any and all applicable laws and regulations
2.SERVICES OVERVIEW. Our Services may contain message
boards, chat rooms, personal web pages, profiles, forums, bulletin boards, and
other interactive features that allow users to post, submit, publish, display,
or transmit to other users or other persons content or materials (collectively,
"User Content") on or through the Services. All such User
Content must comply with these Terms, including without limitation Section 9
Prohibited Uses and Section 10 User Content.
3.CHANGES TO THE TERMS. We reserve the right, at
our sole discretion, to change, modify, add, or delete portions of these Terms
at any time without further notice. If we do this, we will post the changes to
these Terms on this page and will indicate at the top of this page the Terms’ effective
date. Your continued use of the Services after any such changes constitutes
your acceptance of the new Terms. If you do not agree to abide by these or any
future Terms, you must not use or access the Services. It is your
responsibility to regularly review these Terms.
4.LEGAL DISCLAIMER. We make no claims as to emission performance for
street or highway use. Some equipment is not sold for street use in any state
or country where state or federal regulations prohibit its use. Some items
listed in the online catalog are intended for off-road use only. Federal
regulations and some state laws prohibit the removal, modification, or
rendering inoperable of any device or design element that affects vehicle
emission or safety in a vehicle used on public highways. Violation of such laws
may subject the owner or user to fines or penalties; we insist you check local
and federal laws for compliance regulations prior to purchasing said parts.
Please be aware that installation of performance products may void a
manufacturer's warranty coverage, if any, on your vehicle and that vehicles
modified by the use of performance parts may no longer lawfully be used on
public highways. Dealers, installers, and end-users assume all costs and risks
associated with the purchase and installation of these items. The majority of
products sold through our website are designed for U.S. vehicle fitment only,
and many are restricted based on make and model year; it is the consumer's
responsibility to ensure the products being purchased are compatible with the
intended vehicle make, model, year, and current performance application. As
most aftermarket products are engineered for compatibility with OEM components,
the consumer also assumes all responsibility and risk associated with any
potential conflicts or problems that may arise from the use of multiple
5.PRICING. All pricing is subject to change without prior notice. We reserve
the right to adjust the price of any product sold through the Website at any
time at our sole discretion. In the event that a product is listed on the
Website at an incorrect price due to a typographical error or error in pricing
information received from our suppliers, the Company shall have the right to
refuse or cancel any orders placed for the product listed at the incorrect
price. The Company shall have the right to refuse or cancel any such orders
whether or not the order has been confirmed and your credit card charged. If
your credit card has already been charged for the purchase and your order is
canceled, the Company shall issue a credit to your credit card account in the
amount of the incorrect price.
6.ACCESSING THE SERVICES
AND ACCOUNT SECURITY.
6.1.To access the Services, you may be asked to provide certain registration
details or other information. As a condition of your use of the Services, all
information you provide on the Services must be correct, current, and complete.
You agree that all information you provide to us, including but not limited to
You consent to all actions we take with respect to your information, consistent
6.2.If you choose, or are provided with, a username, password or any
other information as part of our security procedures, you must treat such
information as confidential, and you must not disclose it to any other person
or entity. You acknowledge that your account is personal to you and you agree
to accept responsibility for all activities that occur under your account. You
agree not to provide any other person with access to the Services or portions
of it using your username, password, or other security information. You agree
to notify us immediately of any unauthorized access to or use of your username
or password or any other breach of security. You agree to ensure that you exit
from your account at the end of each session. You should use particular caution
when accessing your account from a public or shared computer, so that others
are not able to view or record your password or other personal information.
6.3.We have the right to disable any username, password, or other
identifier, whether chosen by you or provided by us, at any time if, in our
opinion, you have violated any provision of these Terms.
7.1.The Services and all content, features, and functionality thereof ,
including but not limited to text, images, icons, graphics, artwork,
photographs, trademarks, logos, sounds, music, videos, interfaces, computer
codes, and domain names, and all other elements of the Services (collectively
designated as "Content"), and selection, arrangement,
organization, coordination, expression, look and feel, and design of such
Content is owned, controlled or licensed by or to Company or a third party, and
is protected by United States and international copyright, patent, trade dress,
trade secret and trademark laws, and various other intellectual property rights
and unfair competition laws. All intellectual property associated with such
Content, and the rights to said property and Content, belong to and shall
remain the sole property of Company and its licensors, and may not be used unless
as otherwise expressly authorized by Company. You may not modify, copy,
distribute, frame, reproduce, republish, display, post, transmit or sell in any
form or by any means, in whole or in part, the Content without the Company’s
prior written permission. You may not republish the Content on any Internet,
Intranet, or Extranet site or incorporate the information in any other database
or compilation. Company reserves all rights to the Content not granted
expressly in these Terms.
7.2.All trademarks, logos, trade dress and service marks displayed in
connection with the Services are trademarks of the Company or third parties and
may not be copied, imitated, or used, in whole or in part, without the prior
written permission of the Company.
8.COPYRIGHT INFRINGEMENT. We respect the rights of all
copyright holders and in this regard, we have adopted and implemented a policy
that provides for the deletion in appropriate circumstances of content that
infringes the rights of copyright holders. If you believe that your work has
been copied in a way that constitutes copyright infringement, please provide
our Copyright Agent the following information: A physical or electronic
signature of a person authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed; a description of the copyrighted work
claimed to have been infringed, or, if multiple copyrighted works at a single
online site are covered by a single notification, a representative list of such
works at that site; a description of the material that is claimed to be
infringing or to be the subject of infringing activity and that is to be
removed or access to which is to be disabled, and information reasonably
sufficient to permit us to locate the material; your address, telephone number,
and email address; a written statement that the complaining party has a good-faith
belief that use of the material in the manner complained of is not authorized
by the copyright owner, its agent, or the law; and a statement that the
information in the notification is accurate, and under penalty of perjury, that
the complaining party is authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed. Our Copyright Agent for notice of
claims of copyright infringement can be reached as follows: TrailRecon, 7976
Rubicon Trail Pl NW Silverdale, WA 98383, Attn: Copyright Agent. We will remove
the infringing posting(s), subject to the procedures outlined in the Digital
Millennium Copyright Act (DMCA).
9.PROHIBITED USES. You may use the Services only for
lawful purposes and in accordance with these Terms. You agree not to:
9.1.Use the Services in any way that violates any applicable federal,
state, local, or international law or regulation (including, without
limitation, any law regarding the export of data or software to or from the US
or other countries).
9.2.Use the Services for the purpose of exploiting, harming, or
attempting to exploit or harm minors in any way by exposing them to
inappropriate content, asking for personally identifiable information, or
9.3.Perform any fraudulent activity including impersonating any person
or entity, claiming false affiliations, accessing the Services accounts of
others without permission, or falsifying your age or date of birth.
9.4.Violate the rights of third parties, including by infringing or
misappropriating third party intellectual property rights.
9.5.Sell or otherwise transfer the access granted herein or any Content
or any right or ability to view, access, or use any Content.
9.6.Send, knowingly receive, upload, download, use, or re-use any
material that does not comply with the User Content standards in Section 10 of
9.7.Transmit, or procure the sending of, any advertising or promotional
material without our prior written consent, including any "junk
mail," "chain letter," "spam," or any other similar
9.8.Interfere with the operation of the Services or any user's
enjoyment of the Services, including without limitation by: (i) uploading or
otherwise disseminating viruses, adware, spyware, worms, or other malicious
code; (ii) making unsolicited offers or advertisements to other users of the
Services; (iii) collecting personal information about users or third parties
without their consent; (iv) using any device, software, or routine that
interferes with the proper working of the Services; (v) attacking the Services
via denial-of-service attack or distributed denial-of-service attack; or (vi)
interfering with or disrupting any networks, equipment, or servers connected to
or used to provide the Services, or violating the regulations, policies, or
procedures for those networks, equipment, or servers.
9.9.Use any robot, spider, or other automatic or manual device,
process, or means to access the Services for any purpose, including monitoring,
copying, or scraping any of the material or information on the Services.
9.10.Otherwise attempt to interfere with the proper working of the
Services or engage in any other conduct that restricts or inhibits anyone's use
or enjoyment of the Services, or which, as determined by us, may harm Company
or users of the Services, or expose them to liability.
10.1.These content standards apply to any and all User Content. User
Content must in their entirety comply with all applicable federal, state,
local, and international laws and regulations. Without limiting the foregoing,
User Content must not:
·Contain any material that is defamatory, obscene, indecent,
abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise
·Promote or include sexually explicit or pornographic material,
violence, or discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age.
·Contain personal attacks against other participants, name-calling,
slurs, hate speech, or bigotry.
·Infringe any patent, trademark, trade secret, copyright, or other
intellectual property or other rights of any other person.
·Violate the legal rights (including the rights of publicity and
privacy) of others or contain any material that could give rise to any civil or
criminal liability under applicable laws or regulations or that otherwise may
·Promote any illegal activity, or advocate, promote, or assist any
·Cause annoyance, inconvenience, or needless anxiety or be likely to
upset, embarrass, alarm, or annoy any other person.
·Impersonate any person or misrepresent your identity or affiliation
with any person or organization.
·Involve commercial activities or sales, such as contests,
sweepstakes, and other sales promotions, barter, or advertising.
·Give the impression that they emanate from or are endorsed by us or
any other person or entity, if this is not the case.
10.2.You retain ownership of your User Content. Any User Content you
post to the site will be considered non-confidential and non-proprietary. By
providing any User Content through the Services, you grant us and our
affiliates and service providers, and each of their and our respective licensees,
successors, and assigns the perpetual, irrevocable, and worldwide right to use,
reproduce, modify, perform, display, distribute, and otherwise disclose to
third parties any such material for any purpose consistent with our Privacy
10.3.We may offer features that enable you to make User Content
available to others (whether publicly or to a specified group). We do not have
the ability to control what any third party may do with User Content and we are
not responsible for those actions. Once User Content has been shared, those
with access to it may be able to reshare, publish, re-use, modify, or otherwise
exploit User Content, so please carefully consider what you choose to share
before you share it.
10.4.You are solely responsible for User Content associated with your
account and the consequences of uploading, posting, or sharing that User
Content. By uploading, posting, or sharing User Content, you affirm, represent,
and warrant that (i) you are the creator and owner of, or have the necessary
licenses, rights, consents, and permissions to use and to authorize Company and
others, as described in this Section, to exercise the rights and permissions
granted by you in this Section; and (ii) your User Content, and the use thereof
as contemplated herein, does not and will not infringe, violate, or
misappropriate any third-party right, including any copyright, trademark,
patent, trade secret, moral right, privacy right, right of publicity, or any
other intellectual property or proprietary right; or slander, defame, or libel any third-party.
10.5.We are under no obligation to edit or control User Content that you
or other users post or publish, and will not be in any way responsible or
liable for User Content. Company may, however, at any time and without prior notice,
screen, remove, edit, or block any User Content that in our sole judgment
violates these Terms or is otherwise objectionable. You understand that when
using the Services you may be exposed to User Content from a variety of sources
and acknowledge that User Content may be inaccurate, offensive, indecent, or
objectionable. You agree to waive, and hereby do waive, any legal or equitable
rights or remedies you have or may have against Company with respect to User
Content. We expressly disclaim any and all liability in connection with User
Content. If notified by a user or content owner that User Content allegedly
does not conform to these Terms, we may investigate the allegation and
determine in our sole discretion whether to remove the User Content, which we
reserve the right to do at any time and without notice.
11.FEEDBACK. From time to time, you may
provide to Company (either on your own accord or at our request) feedback,
analysis, suggestions and comments related to the Services (collectively, “Feedback”). As between you and Company, all right, title
and interest in and to any such Feedback will be owned by Company. You agree that Company will have the
perpetual, irrevocable, and worldwide right to make, use, sell, offer to sell,
import, copy, reproduce, distribute, perform, display, create derivative works,
modify, license, sublicense, and otherwise exploit all or part of the Feedback
or any derivative thereof in any manner or media now known or hereafter devised
without any remuneration, compensation, credit, or notice to you.
12.MONITORING AND ENFORCEMENT; TERMINATION.
12.1.We have the right to (i) remove or refuse to post any User Content
for any or no reason in our sole discretion; (ii) take any action with respect
to any User Content that we deem necessary or appropriate in our sole
discretion, including if we believe that such User Content violates
the Terms, infringes any intellectual property right or other right of any
person or entity, threatens the personal safety of users of the Services or
the public, or could create liability for Company; (iii) disclose your identity
or other information about you to any third party who claims that material
posted by you violates their rights, including their intellectual property
rights or their right to privacy; or (iv) take appropriate legal action,
including without limitation referral to law enforcement, for any illegal or
unauthorized use of the Services.
12.2.Without limiting the foregoing, we have the right to cooperate
fully with any law enforcement authorities or court order requesting or
directing us to disclose the identity or other information of anyone posting
any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS
COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS
RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING, OR TAKEN AS A CONSEQUENCE
OF, INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
12.3.If you violate any provision of these Terms, Company may
immediately suspend or terminate your access to and use of the Services, in its
sole discretion, with or without notice to you.
We also reserve the right to modify or discontinue the Services at any time
(including, without limitation, by limiting or discontinuing certain features
of the Services) without notice to you. We will have no liability whatsoever on
account of any change to the Services or any suspension or termination of your
access to or use of the Services.
13.RELIANCE ON INFORMATION POSTED.
13.1.The information presented on or through the Services is made
available only for general information purposes. Use of the Services and the
products sold thereon is at your sole risk and neither the Company nor any of
its affiliates, suppliers, employees, or agents warrant that the Services will
be uninterrupted, timely, accurate, complete or error-free or that errors, if
any, will be corrected. Other than as required under applicable consumer
protection laws, under no circumstance will the Company be liable for any
damages of any kind arising from the use of the Services or the products sold
thereon. It is the responsibility of the user to evaluate the accuracy,
completeness, or usefulness of any information, opinion, advice, or other
content available through the Services.
13.2.Services may include content provided by third parties, including
materials provided by other users, bloggers, and third-party licensors,
syndicators, aggregators, and/or reporting services. All statements and/or
opinions expressed in these materials, and all articles and responses to
questions and other content, other than the content provided by Company, are
solely the opinions and the responsibility of the person or entity providing
those materials. These materials do not necessarily reflect the opinion of
Company. We are not responsible, or liable to you or any third party, for the
content or accuracy of any materials provided by any third parties.
14.CHANGES TO THE SERVICES. We may update the content on the
Services from time to time, but its content is not necessarily complete or
up-to-date. Any of the material on the Services may be out of date at any given
time, and we are under no obligation to update such material.
15.EVENTS BEYOND OUR CONTROL. While the Company has endeavored to
create secure and reliable Services, the
Company and its affiliates are not responsible for the security of information
transmitted via the Internet, the accuracy of the information contained on or
through the Services, or for the consequences of any reliance on such
information. You must make your own determination as to these matters. The
Company is not responsible for failure to receive an order or technical
problems that may hinder the efficacy of an order. The Company and its
affiliates shall not be liable for damages as a result of any delay or other
failure of performance due to causes beyond its reasonable control including,
without limitation, acts of God, acts of customer or any of its
representatives, acts of military or civil authorities, fire or other casualty,
strikes, lockouts, weather, epidemic, war, riot, terrorism, telecommunications
interruptions or computer viruses. The Services may be temporarily unavailable
from time to time for maintenance or other reasons.
16.LINKS FROM THE SERVICES.
16.1.Company may provide tools through the Services that enable you to
export information, including User Content, to third party services, including
through features that allow you to link your account with Company with an
account on the third-party service, such as Twitter or Facebook, or through our
implementation of third party buttons (such as “like” or “share” buttons). By
using these tools, you agree that we may transfer such information to the
applicable third-party service. Those third-party services are not under our
control, and we are not responsible for their use of your exported information.
16.2.If the Services contain links to other sites or resources provided
by third parties, these links are for your convenience only. This includes
links contained in advertisements, including banner advertisements and
sponsored links. We have no control over the contents of other sites or
resources. We accept no responsibility for them or for any loss or damage that
may arise from your use of them. If you decide to access any third-party
website linked to the Services, you do so entirely at your own risk and subject
to the terms and conditions of use for such website.
17.GEOGRAPHIC RESTRICTIONS. Company is based in the United
States. We make no claim that the Services is accessible or appropriate outside
of the United States. Access to the Services may not be legal by certain
persons or in certain countries. If you access the Services from outside the
United States, you do so on your own initiative. You are solely responsible for
compliance with local laws. Although the Services may be accessible worldwide,
not all features, products or services discussed, referenced, provided, or
offered through or on the Services are available to all persons or in all geographic
locations, or appropriate or available for use outside the United States. Company
reserves the right to limit, in its sole discretion, the provision and quantity
of any Service to any person or geographic area. Any offer for the Services is
void where prohibited. The Services may
be subject to the export and import laws of the United States and other
countries. You agree to comply with all applicable export and import laws and
regulations. You shall not, and shall not permit any third parties to, directly
or indirectly, export, reexport, or release any Services to any jurisdiction or
country to which, or any party to whom, the export, reexport, or release of any
Services is prohibited by applicable federal or foreign law, regulation, or
18.DISCLAIMER OF WARRANTIES.
18.1.YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. THE
SERVICES, INCLUDING ALL INFORMATION, MATERIALS AND CONTENT AVAILABLE THROUGH
THE SERVICES IS PROVIDED "AS IS, AS AVAILABLE" AND WITHOUT WARRANTIES
OF ANY KIND WITH RESPECT TO ITS CORRECTNESS, ACCURACY, RELIABILITY, OR
OTHERWISE. THE COMPANY DOES NOT WARRANT THAT OPERATION OF THE SERVICES WILL BE
UNINTERRUPTED OR FREE FROM ERRORS, THAT DEFECTS WILL BE CORRECTED OR THAT THE
SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT
LIMITATION TO THE FOREGOING, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICES AND ALL
MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED
TO: (I) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTIES
ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
18.2.YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE
OF OR ACCESS TO THE SERVICES, YOUR DEALINGS WITH OTHER USERS OF THE SERVICES,
AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND
AGREE THAT YOU USE THE SERVICES, AND ACCESS, DOWNLOAD, USE, AND/OR OTHERWISE OBTAIN
MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES,
AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR PROPERTY (INCLUDING TO YOUR COMPUTER SYSTEM USED IN CONNECTION
WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR
THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
18.3.SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY
TO YOU. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR
LIMITED UNDER APPLICABLE LAW
18.4.The terms of this section shall survive any termination of these
19.LIMITATION OF LIABILITY.
19.1.IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER
INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR
YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON
THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE),
STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT COMPANY HAS BEEN INFORMED OF
THE POSSIBILITY OF SUCH DAMAGE.
19.2.YOU AGREE THAT THE AGGREGATE LIABILITY OF COMPANY TO YOU FOR ANY
AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE
THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE
SERVICES) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, IS LIMITED TO $100 U.S. DOLLARS.
19.3.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
19.4.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE
RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL
ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE
PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.
THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF
ITS ESSENTIAL PURPOSE.
20.INDEMNIFICATION. You agree that you will be responsible
for your use of the Services, and you agree to defend, indemnify, and hold
harmless Company and its affiliates, and their respective officers, directors,
employees, consultants, and agents (“Company Entities”) from and against any
and all claims, liabilities, damages, losses, and expenses, including
reasonable attorneys' fees and costs, arising out of or in any way connected
with: (i) your access to, use of, or alleged use of the Services; (ii) your
violation of these Terms or any representation, warranty, or agreements
referenced in the Terms, or any applicable law or regulation; (iii) your
violation of any third-party right, including without limitation any
intellectual property right, publicity, confidentiality, property, or privacy
right; or (iv) any disputes or issues between you and any third party. We
reserve the right, at our own expense, to assume the exclusive defense and
control of any matter otherwise subject to indemnification by you (and without
limiting your indemnification obligations with respect to such matter), and in
such case, you agree to cooperate with our defense of such claim. Notwithstanding the foregoing, your
indemnification obligations do not include any obligation to indemnify Company
Entities for claims to the extent that they are caused solely by a Company
Entities’ infringement or misappropriation of third-party intellectual property
rights, gross negligence, violation of applicable law, or breach of these
21.1.Law for Legal Disputes.
All disputes arising out of or relating to these Terms (“Disputes”)
shall be governed and constructed in accordance with the laws of the State of
Washington, without regard to conflicts of law provisions. Subject to the
binding arbitration provisions in Section 21.3, sole and exclusive jurisdiction
for any action or proceeding arising out of or related to these Terms shall be
an appropriate state or federal court located in Washington.
21.2.Timing to Commence Action. Any cause of action you may have
with respect to your use of the Services must be commenced within one year
after the claim or cause of action arises.
21.3.1.In the interest of resolving Disputes between you and Company in
the most expedient and cost effective manner, you and Company agree that any
and all Disputes will be resolved by binding arbitration. Arbitration is more
informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead
of a judge or jury, may allow for more limited discovery than in court, and can
be subject to very limited review by courts. YOU UNDERSTAND AND AGREE THAT, BY
ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A
TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
21.3.2.Any arbitration between you and Company will be governed by the
Commercial Dispute Resolution Procedures and the Supplementary Procedures for
Consumer Related Disputes (collectively, “AAA Rules”) of the American
Arbitration Association (“AAA”), as modified by these Terms, and will be
administered by the AAA. The AAA Rules and filing forms are available online at
https://www.adr.org/, by calling the AAA at 1-800-778-7879, or by contacting
21.3.3.A party who intends to seek arbitration must first send a written
notice of the dispute to the other, by certified mail or Federal Express
(signature required), or if we do not have a physical address on file for you,
by electronic mail (“Notice”). Company's address is set forth in Section
22. The Notice must (a) describe the
nature and basis of the claim or dispute; and (b) set forth the specific relief
sought (“Demand”). We agree to use good faith efforts to resolve the
claim directly, but if we do not reach an agreement within 30 days after the
Notice is received, you or Company may commence an arbitration proceeding.
During the arbitration, the amount of any settlement offer made by you or
Company will not be disclosed to the arbitrator until after the arbitrator
makes a final decision and award, if any.
21.3.4.If you commence arbitration in accordance with these Terms, Company
will reimburse you for your payment of the filing fee, unless your claim is for
greater than $10,000, in which case the payment of any fees will be decided by
the AAA Rules. Any arbitration hearings will take place at a location to be
agreed upon in Seattle, WA provided that if the claim is for $10,000 or less,
you may choose whether the arbitration will be conducted: (a) solely on the
basis of documents submitted to the arbitrator; (b) through a non-appearance
based telephonic hearing; or (c) by an in-person hearing as established by the
AAA Rules in the county (or parish) of your billing address. If the arbitrator
finds that either the substance of your claim or the relief sought in the
Demand is frivolous or brought for an improper purpose (as measured by the
standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment
of all fees will be governed by the AAA Rules. In such case, you agree to
reimburse Company for all monies previously disbursed by it that are otherwise
your obligation to pay under the AAA Rules. Regardless of the manner the
arbitration is conducted, the arbitrator will issue a reasoned written decision
sufficient to explain the essential findings and conclusions on which the
decision and award, if any, are based. The arbitrator may make rulings and
resolve disputes as to the payment and reimbursement of fees or expenses at any
time during the proceeding and upon request from either party made within 14
days of the arbitrator's ruling on the merits.
21.3.5.Notwithstanding this subsection, we both agree that nothing herein
will be deemed to waive, preclude, or otherwise limit either of our right to:
(a) bring an individual action in small claims court; (b) pursue enforcement
actions through applicable federal, state, or local agencies where such actions
are available; (c) seek injunctive relief in a court of law; or (d) to file
suit in a court of law to address intellectual property infringement or
21.4.Jury Trial Waiver. EACH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES.
21.5.Class Action Waiver. NEITHER PARTY TO THESE TERMS MAY
ASSERT CLAIMS AGAINST THE OTHER PARTY ON BEHALF OF OTHERS (E.G., IN A
REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL CAPACITY) IN A LITIGATION,
ARBITRATION OR ANY OTHER PROCEEDING ARISING OUT OF OR RELATING TO A DISPUTE,
AND NEITHER THE COURT NOR ANY ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD
RELIEF FOR OR AGAINST ANYONE ON A CLASS OR REPRESENTATIVE BASIS.
21.6.Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND
BY THIS LEGAL DISPUTES PROVISION, IN WHOLE OR IN PART, YOU MUST NOTIFY COMPANY
IN WRITING WITHIN SIXTY (60) CALENDAR DAYS OF THE DATE THAT YOU FIRST RECEIVE
THESE TERMS BY MAIL TO THE ADDRESS IN SECTION 22. YOUR NOTIFICATION MUST INCLUDE YOUR ACCOUNT
NUMBER AND A CLEAR STATEMENT OF YOUR INTENT, SUCH AS “I REJECT THE CLASS ACTION
WAIVER IN COMPANY’S TERMS” OR “I REJECT THE LEGAL DISPUTES CLAUSE IN COMPANY’S
TERMS.” YOUR DECISION TO OPT OUT OF THIS LEGAL DISPUTES PROVISION WILL HAVE NO
ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF SERVICES TO YOU
21.7.Severability. If for any reason a court of
competent jurisdiction finds any provision of this Legal Disputes clause, or
portion thereof, to be unenforceable, that provision shall be enforced to the
maximum extent permissible so as to affect the intent of the Terms, and the
remainder of the Terms shall continue in full force and effect.
21.8.Survival. This Legal Disputes clause shall survive any
expiration or termination of these Terms or your Services with Company.
22.NOTICES. Except as specified otherwise in these Terms, all
notices to Company must be sent to 7976 Rubicon Trail Pl NW Silverdale, WA
98383, by certified mail, and will be deemed given upon receipt by Company. All
notices by Company to you will be sent to the email address you have made
available to Company, and will be deemed given on the day sent.
23.CONSENT TO ELECTRONIC COMMUNICATIONS. By using the Services,
you consent to receiving certain electronic communications from us as further
about your choices regarding our electronic communications practices. You agree
that any notices, agreements, disclosures, or other communications that we send
to you electronically will satisfy any legal communication requirements,
including that such communications be in writing.
24.GENERAL TERMS. These Terms, together with the
herein, constitute the entire agreement between you and the Company, by and on
behalf of its subsidiaries and affiliates with respect to the Services and
supersede all prior agreements with respect to the Services. The Company will
not be bound by any additional or different terms on order forms or other
documents that are inconsistent with these terms. The Company may assign the Terms
at any time without notice. You may not assign or transfer these Terms, in
whole or in part, without our prior written consent. If any provision of these
Terms is held to be unlawful or unenforceable for any reason, the remaining
provisions will be unaffected and remain in full force and effect. Except as expressly
permitted herein, the Terms may be amended only by a written agreement signed
by authorized representatives of all parties to these Terms. The failure to
require performance of any provision will not affect our right to require
performance at any time thereafter, nor will a waiver of any breach or default
of these Terms or any provision of these Terms constitute a waiver of any
subsequent breach or default or a waiver of the provision itself. Use of
section headers in these Terms is for convenience only and will not have any
impact on the interpretation of particular provisions. Upon termination of
these Terms, any provision that by its nature or express terms should survive
will survive such termination or expiration.
25.YOUR COMMENTS AND CONCERNS. All feedback, comments, requests
for technical support and other communications relating to the Services should
be directed to [email protected].