These Terms of Use (these “Terms”) are between 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 Services. By using the Services, you signify that you have read, understand, and agree to be bound by these Terms, including our Privacy Policy and any additional 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 Services.

 

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 aftermarket products.

 

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 through the use of any interactive feature, is governed by our Privacy Policy. You consent to all actions we take with respect to your information, consistent with our Privacy Policy.

 

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.            INTELLECTUAL PROPERTY.

 

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 otherwise.

 

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 these Terms.

 

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 solicitation.

 

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.          USER CONTENT.

 

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 objectionable.

·                     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 be in conflict with these Terms and our Privacy Policy.

·                     Promote any illegal activity, or advocate, promote, or assist any unlawful act.

·                     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 Policy.

 

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 rule.

 

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 Terms.

 

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 Terms.

 

21.   LEGAL DISPUTES.

 

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.             Binding Arbitration.

 

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 Company.

 

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 misappropriation claims.

 

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 BY US. 

 

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 described in our Privacy Policy. Please read our Privacy Policy to learn more 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 Privacy Policy and any other agreements expressly incorporated by reference 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]

Last Modified: 8/1/2021