Effective Date: September 19, 2019
Please note the arbitration provision set forth below, requiring—except where and to the extent prohibited by law, which may include the province of Quebec—you to arbitrate any claims you may have against Company on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY
2. AGE LIMITATION
By using the Sites you represent that you are at least 13 years old. YOU MAY NOT USE OR REGISTER FOR THE SITES IF YOU ARE UNDER THE AGE OF 13.
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Sites and receipt of data, materials and information available at or through the Sites.
5. DISPUTES AND AGREEMENT TO ARBITRATE
Except where and to the extent prohibited by law, which may include the province of Quebec, by using the Sites, you and Company agree that, if there is any controversy, claim, action, or dispute arising out of or related to your use of the Sites, or the breach, enforcement, interpretation, or validity of this Agreement or any part of it (“Dispute”), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent:
to Company at: Boardriders, Inc., Attention: Legal Department, 5600 Argosy Circle, Building #100, Huntington Beach, CA 92649
to you at: your last-used billing address or the billing and/or shipping address that we may have on file for you.
Both you and Company agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party. IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that you and we would have in court will not be available or will be more limited in arbitration, including discovery and appeal rights. All such Disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, before one arbitrator to be mutually agreed upon by both parties.
6. CHOICE OF LAW
This Agreement has been made in, and shall be construed in accordance with, the laws of the State of California, without giving effect to any conflict of law principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
7. OWNERSHIP OF INTELLECTUAL PROPERTY
Trademarks: Boardriders, Quiksilver, Billabong, Roxy, DC Shoes, RVCA, Element, VonZipper, Xcel, Honolua, Dot Dash and other trademarks, service marks, trade names, and trade dress indicated on our Sites are trademarks or registered trademarks of Company and its affiliates, licensors and licensees in the United States and other countries. All rights in such names are hereby reserved. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Sites confers on you any license or right under any patent or trademark owned or controlled by Company or any third party.
Copyright: All information, text, images, photographs, graphics, videos, music, user interface and other content and materials contained on the Sites are the copyrighted property of Company or its third-party licensors to the full extent provided under the United States Copyright Act and all international copyright laws. Under applicable copyright laws, you are prohibited from copying, reproducing, modifying, distributing, displaying, performing, or transmitting any of the contents of the Sites for any purposes. Nothing stated or implied on the Sites confers on you any license or right under any copyright of Company or any third party. The Sites and the information contained in reference herein are for your personal, non-commercial use only. Except as otherwise specifically permitted herein, you shall not broadcast, duplicate, copy, reproduce, edit, manipulate, modify, publish, rent, sell, publicly display, perform, distribute, transmit, or circulate to anyone the contents of the Sites, or use the contents of the Sites in litigation, or for any commercial or promotional purposes, without the express written consent of Company or its lawful successors and assigns. For usage permission, please contact us via email at firstname.lastname@example.org.
8. NOTICE OF COPYRIGHT INFRINGEMENT
We respect and honor the intellectual property of others. If you believe that your work has been copied and is accessible on the Sites in a way that constitutes copyright infringement, please provide our copyright agent with the following information:
(1) Identification of the copyrighted work claimed to have been infringed;
(2) Identification of the allegedly infringing material on the Sites that is requested to be removed;
(3) Your name, address, and daytime telephone number, and an email address if available, so that we may contact you if necessary;
(4) A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law;
(5) A statement that the information in the notification is accurate and, under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed; and
(6) An electronic or physical signature of the copyright owner or someone authorized on the owner's behalf to assert infringement of copyright and to submit the statement.
Our copyright agent for notice of claims of copyright infringement on the Sites is Company’s Legal Compliance counsel, who can be reached as follows:
Attn: Legal Compliance
5600 Argosy Circle, Building #100
Huntington Beach, CA 92649
(714) 889-2200 - Monday thru Friday 7am to 6pm (PST)
You do not have to register to view the Sites. You can visit the Sites, read blog posts and other materials, browse merchandise, post reviews, and check on offerings without registering for a user account. You can also contact us about a particular video, picture, audio file or other posting without having an account. However, you must register for an account in order to access the full features of the Sites, for example to become a member of the Boardriders Club. To register, you must create a user account, which requires you to provide your email address, mailing address including zip code, mobile number, birth date, and select a password. When creating a user account, you must provide accurate, complete and updated registration information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You are fully responsible for your failure to safeguard information and/or to permit any other person to access or use the Sites using your profile and/or account, and for all activities that occur under your profile and/or account. You may not sell or otherwise transfer your profile or account or any portion thereof. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be responsible for any losses caused by any unauthorized use of your account. Company reserves the right to refuse registration or terminate, suspend, or cancel access to a user account at any time in its sole discretion. If we suspend or cancel access to your account, you may be prevented from accessing the Sites (temporarily or permanently), your account details and/or any files or other various Sites materials, including all text, comments, icons, images, messages, tags, links, photographs, audio, video and other content that are contained in or accessible through your account, all of which may be deleted by us. Such suspension or cancellation of your account will mean that you may lose access to all content submitted by you. You may also terminate or discontinue your own account at any time by sending an email request to email@example.com.
10. RETURNS, REFUNDS, SHIPPING, AND ORDER CANCELLATIONS
Please review our Online and Phone Purchases Policy (https://www.elementbrand.com/customer-service-returns-and-exchanges-online-and-phone-purchases-return-policy.html), our Shipping Methods and Timelines (www.elementbrand.com/customer-help/shipping.html), and our Cancellations Policy (https://www.elementbrand.com/cancellations.html), which also govern your visit to the Sites, as applicable. The terms and conditions of these documents are incorporated herein and made a part of this Agreement.
We welcome your comments and feedback about the Sites and our products. In addition, in some places the Sites enable users to post comments and product reviews which may be viewed by other users. If you post any comments, reviews, testimonials, feedback, notes, messages, ideas, suggestions or other communications (collectively, “Comments”) on the Sites or sent to us, whether through the Sites, email, facsimile, U.S. mail or by other means, you automatically grant, or warrant that the owner of such Comments has expressly granted Company, a royalty-free, full-paid, perpetual, irrevocable, worldwide, unlimited, nonexclusive, sublicensable, and transferable license to use, re-use, reproduce, sublicense, create derivative works from, modify, publish, edit, translate, distribute, re-distribute, transmit, print, copy, host, store, cache, archive, index, categorize, comment on, broadcast, stream, import, perform, exhibit, and display the communication or content material in any media or medium, or any form, format, or forum now known or hereafter developed. Company may sublicense its rights through multiple tiers of sublicenses. You should not submit any Comments to us that you do not wish to license to us. Company is and shall be under no obligation: (1) to maintain any Comments in confidence; (2) to pay any compensation for any Comments; or (3) to respond to any Comments. You grant Company the right to use the name that you submit in connection with any Comments. You agree to the foregoing grant of rights, consents, and agreements whether or not your Comments are used by us.
You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, and waivers set forth in this Agreement.
Without limiting the scope of this section or any future grant of rights, consents, agreements, and waivers you may make with respect to Comments, you hereby ratify any prior grant of rights, consents, agreements, and waivers made by you with respect to Comments submitted by you to us.
12. LICENSE AND SITE ACCESS
Company grants you a limited, revocable and nonexclusive license to access and make personal use of the Sites but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Company. This license does not include any resale or commercial use of the Sites or their contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Sites or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, spiders or similar data gathering and extraction tools. Neither the Sites nor any portion of the Sites may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Company. You may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Company and its affiliates, licensors or licensees without express written consent of Company. You may not use meta tags or any other hidden text using Company's brand names or trademarks without the express written consent of Company. Any unauthorized use will immediately terminate the permission or license granted by Company. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Sites so long as the link does not portray Company or its products or services in a false, misleading, derogatory, or otherwise offensive manner as determined by Company in its sole discretion. You may not use any Company logo or other proprietary graphic or trademark as part of the link without express written permission of Company. You may not make any other part of the Sites, other than the home page of the Sites, available as part of another service by "deep linking," or otherwise, without prior written permission from Company. Any permitted links to the Sites must comply will all applicable laws, rules and regulations.
13. THIRD-PARTY AND CO-BRANDED SITES
The Sites may contain hyperlinks (“links”) to websites operated by persons or entities other than Company (“third-party Websites”) or to co-branded websites operated by a third party, including Company's affiliates and licensees (“co-branded Websites”). We provide such links for your reference and convenience only. A link from the Sites to a third-party or co-branded Website does not mean or imply that Company endorses the content on that third-party or co-branded Website or the operator or operations of that third-party or co-branded Website. Company explicitly disclaims any responsibility for the accuracy, completeness or availability of information, content and materials found on any third-party or co-branded Website. Company does not endorse any of the merchandise, nor can we ensure that you will be satisfied with any products or services that you purchase from a third-party or co-branded Website. Company does not make any representations or warranties as to the security of any information, content or materials (including, without limitation, credit card and other personal information) you might be requested to give to any third-party. You hereby irrevocably waive any claim against Company with respect to information, content and materials contained on any third-party or co-branded Website, and any information, content and materials you provide to such third-party or co-branded Website (including, without limitation, credit card and other personal information). You are solely responsible for determining the extent to which you use any content at any third-party or co-branded Website to which you might link from our Sites. Your use of any website linked to from the Sites is subject to the policies and procedures of the owner of such website, and your use of all such websites is subject to such policies and procedures and not to the terms and conditions of this Agreement. You understand that by using any third-party Website linked to from the Sites, you may be exposed to content or other materials that are offensive, indecent, defamatory or otherwise objectionable. We therefore strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third-parties.
COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES INCURRED AS A RESULT OF ANY DEALINGS WITH ANY THIRD-PARTY OR CO-BRANDED WEBSITE, ANY MERCHANT OR OPERATOR OF A THIRD-PARTY OR CO-BRANDED WEBSITE, OR ANY OTHER PERSON WITH WHOM YOU ENGAGE IN ANY TRANSACTION.
14. YOUR RESPONSIBILITIES
You agree to comply with all applicable laws in connection with your use of the Sites, and such further limitations as may be set forth in any written or on-screen notice from Company. As a condition of your use of the Sites, you warrant that you will not use the Sites for any purpose that is unlawful or prohibited by this Agreement. All information that you provide in connection with any interaction with the Sites or any co-branded Website must be accurate, complete, and current.
By using the Sites, you agree not to violate or attempt to violate the security of the Sites, including, by way of illustration but not limitation, actions such as:
accessing data not intended for you or logging into a server or account that you are not authorized to access;
attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
attempting to interfere with service to any user, host, or network, including, without limitation, by way of submitting a virus to or overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the Sites;
sending unsolicited or unauthorized email, including promotions and/or advertising of products or services, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; and forging any TCP/IP packet header or any part of the header information in any email or posting;
using the Sites in a manner that is designed to interrupt, destroy or limit the functionality of, any computer software or hardware or telecommunications equipment (including by means of software viruses or any other computer code, files or programs);
interfering with or disrupting the Sites, services connected to the Sites, or otherwise interfering with operations or services of the Sites in any way;
infringing any copyright, trademark, trade secret, patent or other right of any party, or defaming or invading the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);
causing us to lose (in whole or part) the services of our internet service providers or other suppliers;
linking to materials or other content, directly or indirectly, to which you do not have a right to link;
using the site in a manner that is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, as determined by Company in its sole discretion;
harvesting or otherwise automatically collecting any information (including without limitation personal information) about other users of the Sites, including, without limitation, e-mail addresses, without the express consent of such users;
copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Sites or any portion thereof;
violating, or encouraging anyone to violate, any applicable local, state, national, or international law, regulation or order.
15. TERMINATION OR RESTRICTION
Company may terminate or restrict your access to all or any part of the Sites at any time, with or without cause, with or without notice, effective immediately. You may also terminate your use of the Sites at any time, provided that all of the provisions of this Agreement, including, without limitation, ownership provisions, warranty and disclaimers shall survive any such termination.
16. RISK OF LOSS
All products purchased from the Sites are transported and delivered to you by an independent carrier not affiliated with, or controlled by, Company. Title to products purchased on the Sites, as well as the risk of loss for such products, passes to you when Company delivers these items to the carrier.
17. PRODUCT INFORMATION
Company attempts to be accurate in describing its products and services on the Sites. We do not warrant that product and service descriptions or other content of this or any other Sites are complete, reliable, current, or error-free.
We have made every effort to display as accurately as possible the colors of our products that appear on the Sites. However, as the actual colors you see depend on your computer monitor and other factors beyond Company's control, we cannot guarantee that your computer's display of any color on the Sites will be accurate.
Most Company products displayed on the Sites are available in select retail stores in the United States and Canada while supplies last. In some cases, merchandise displayed for sale at the Sites may not be available in retail stores. Unless otherwise stated, the prices displayed at the Sites are quoted in U.S. or Canadian Dollars.
18. DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY
THE SITES ARE PROVIDED BY COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY MAKES NO REPRESENTATIONS, CONDITIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITES OR THE INFORMATION, CONTENT, THIRD-PARTY CONTENT, MATERIALS, PRODUCTS, SERVICES OR LINKED SERVICES PROVIDED ON OR THROUGH THE SITES, INCLUDING WITHOUT LIMITATION, THAT THE INFORMATION PROVIDED THROUGH THE SITES WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY IN OPERATION, OR FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; THAT THE SITES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; OR THAT THE CONTENT ON THE SITES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY INFORMATION ON THE SITES IS SUBJECT TO CHANGE WITHOUT NOTICE, AND WE DISCLAIM ALL RESPONSIBILITY FOR THESE CHANGES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK.
EXCEPT WHERE PROHIBITED BY LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL COMPANY, OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITES, BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL AND CONSEQUENTIAL DAMAGES OR ANY DAMAGES OF ANY TYPE OR NATURE ARISING OUT OF YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SITES OR ANY LINKED SITES OR SERVICES; IN THE EVENT A THIRD PARTY INTERCEPTS OR DECRYPTS ANY TRANSMISSION OF INFORMATION THAT YOU PROVIDE TO COMPANY THROUGH THE SITES; OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY, AND YOU MAY HAVE ADDITIONAL RIGHTS.
19. MISCELLANEOUS LEGAL PROVISIONS
Company may discontinue the Sites at any time and for any reason, without notice. Company may change, suspend, or cancel the contents, operation, or any and all other features of the Sites at any time for any reason, without notice.
Company reserves the right to update and/or change the terms of this Agreement. If we make any material changes to this Agreement (as determined by us), we will post a notice on the Sites notifying users of the changes and providing an opportunity for you to take action relative to those changes prior to their implementation. In some cases, we also may send an email notifying registered users of upcoming changes. This Agreement was last updated on the date indicated above. Your continued use of the Sites after any changes or revisions to this Agreement become effective shall indicate your agreement with the terms of such revised and then-current Agreement.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this Agreement or your use of the Sites. Nothing contained in this Agreement is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Sites or information provided to or gathered by us with respect to such use. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Company's failure to enforce any provision of this Agreement or respond to a breach by you or other parties shall not in any way waive its right to enforce subsequently any terms or conditions of this Agreement or to act with respect to similar breaches. You shall not resell or assign your rights, duties or obligations under this Agreement, and any attempted assignment or delegation will be void and of no force or effect whatsoever. This Agreement may be automatically assigned by Company, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees.
If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect, and the invalid unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.
This Agreement constitutes the entire and final agreement regarding the Sites and its contents, and supersedes any prior or contemporaneous communications between you and Company regarding the Sites and their contents.
All rights not expressly granted herein are hereby reserved to Company.
20. CONTACT US
If you have any questions or concerns regarding the Sites or this Agreement, please contact us by email at firstname.lastname@example.org or write to us at the following address:
Attention: Legal Department
5600 Argosy Circle, Building #100
Huntington Beach, CA 92649
P (714) 889-2200 - Monday thru Friday 7am to 6pm (PST)