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 we 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 us 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 you provide us. You and we agree that this dispute resolution procedure is a condition that must be satisfied before initiating any other action or filing any claim against the other party. IF ANY DISPUTE (including any dispute between you and a third-party agent of Boardriders) 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. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part of these terms are void or voidable.
6. INTELLECTUAL PROPERTY Trademarks: Boardriders, Quiksilver, Billabong, Roxy, DC Shoes, RVCA, Element, Vonzipper, Honolua, Dot Dash, Kustom, and other trademarks, service marks, logos, trade names, trade dress, titles, and product names appearing on our Sites are trademarks or registered trademarks of Boardriders and its affiliates, subsidiaries, licensors and licensees (including DC Shoes, Inc.) in the United States and/or 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 us 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 us or our 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 ours or any third party. The Sites and the information contained on the Sites 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 Boardriders or its lawful successors and assigns. For usage permission, please contact us via email at [email protected]
7. 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) Description of the copyrighted work claimed to have been infringed;
(2) Identification of the allegedly infringing material on the Sites including the URL where the material is available or a copy of it; (3) The name, address, daytime telephone number, and an email address of the person submitting the notice, so that we may contact you;
(4) A statement in “good faith belief” that the use of the work is not authorized by the copyright owner, its agent, or the law;
(5) A statement that all of the information in the notification is accurate and, under penalty of perjury, that the signatory is the copyright owner or authorized to act on behalf of the copyright owner; and
(6) An electronic or physical signature of the copyright owner or someone authorized on the owner's behalf. Our copyright agent for notice of claims of copyright infringement on the Sites is Boardriders’ Legal Compliance counsel, who can be reached as follows: Boardriders, Inc. Attn: Legal Compliance 5600 Argosy Circle, Building #100 Huntington Beach, CA 92649
email: [email protected] 8. REGISTRATION FOR AN ACCOUNT You do not have to register to view the Sites. However, you must be eligible and register for an account to access certain services or areas 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. You must provide accurate, complete and updated registration information. You are solely responsible for all activity that occurs under your account, password or profile, 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 use the Sites with your profile and/or account. You may not sell or transfer your profile or account. You must notify Boardriders immediately of any breach of security or unauthorized use of your account. We will not be responsible for any losses caused by any unauthorized use of your account. Boardriders reserves the right to refuse registration or terminate, suspend, or cancel access to a user account at any time in its sole discretion. Such suspension or cancellation of your account will mean that you may lose access to the Sites, your account details, and any Comments (defined below) or content therein. You may also terminate or discontinue your own account at any time by sending an email request to [email protected]
9. RETURNS, REFUNDS, SHIPPING, AND ORDER CANCELLATIONS Please see the applicable brand page for: Online and Phone Purchases Policy, our Shipping Methods and Timelines, and our Cancellations Policy. Or contact Customer Service at the number listed on the applicable brand’s Site page.
10. COMMENTS AND OTHER SUBMISSIONS We welcome your comments and feedback about the Sites and our products. In some places the Sites enable you to upload, store, and send content such as sweepstakes and contest entries, photographs, images, product reviews, testimonials, suggestions, ideas, comments or other communications (collectively, “Comments”). When you send Comments to us, whether through the Sites, social media, email, phone, postal mail, or otherwise, you give to Boardriders permission to reproduce and use your Comments as follows: you grant to us and those we work with a license without restriction to use, reproduce, sublicense, create derivative works from, modify, publish, edit, translate, distribute, copy, host, store, publicly perform, and publicly display the Comments in any medium now known or later developed. You should not submit any Comments to us that you do not wish to license to us. Our license to your Comments is non-exclusive, meaning you may use the Comments for your own purposes or let others use your Comments for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your Comments. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Sites. Boardriders is under no obligation: (1) to maintain Comments in confidence; (2) to pay compensation for Comments; (3) to respond to Comments; or (4) to use Comments. You grant Boardriders the right to use the name you submit with your Comments.
You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Sites. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any Comments. You agree to clearly and conspicuously disclose if you received compensation or other incentive of any kind, from any source, in exchange for posting Comments. You are solely responsible for any Comments you make and their accuracy. Boardriders takes no responsibility and assumes no liability for any Comments posted by you or any third party.
11. LICENSE AND SITE ACCESS We grant you a personal, limited, revocable license to access and make personal use of the Sites but not to download (other than page caching) or modify any portion of the Sites. 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. Unless you have our prior express written consent, you may not: (1) reproduce, duplicate, copy, sell or otherwise use any portion of the Site for commercial purpose, (2) frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Boardriders, DC Shoes and its affiliates, licensors or licensees, or (3) use meta tags or any other hidden text using our brand names or trademarks. Any unauthorized use will immediately terminate the license granted by us. You are granted a limited, revocable right to create a hyperlink to the home page of the Sites so long as the link does not portray Boardriders or its brands, products or services in a false, misleading, derogatory, or otherwise offensive manner as determined by us in our sole discretion. You may not use any of our logos or other proprietary graphic or trademark as part of the link without our express written permission. 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 our prior written permission. Any permitted links to the Sites must comply will all applicable laws, rules and regulations.
12. THIRD-PARTY SITES AND HYPERLINKS The Sites may contain hyperlinks (“links”) to other websites not under the control of Boardriders or to co-branded websites operated by a third party. We provide such links for your reference and convenience only. Boardriders has no responsibility for these third-party websites nor does linking mean Boardriders endorses the website. If you use the links, you will leave our Sites and your activities will be governed by other terms and conditions and privacy practices. We strongly encourage you to make any investigation you feel necessary before proceeding with a transaction with any of these third-parties.
13. YOUR RESPONSIBILITIES You are responsible for your use of the Sites and any use made using your account. By using the Sites, you agree not to violate or attempt to violate the security of the Sites, including:
• attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures;
• sending unsolicited or unauthorized email, text, or other solicitation;
• interfering with, limiting, destroying, or disrupting the Sites, services connected to the Sites, or otherwise interfering with the technological operations or services of the Sites; • violating, infringing or misappropriating other people’s intellectual property, privacy, publicity or other legal rights; •
sharing or posting a Comment or information that is false, misleading, harmful to reputation, abusive, harassing, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable, as determined by us in our sole discretion; • spidering or harvesting or otherwise automatically collecting any information or data from the Sites; • attempting to scrap or crawl any pages on the Sites; • copying, deciphering, disassembling, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract any of the software or other underlying code used to provide the Sites;
• violating any law, regulation or order; or • advocating, encouraging, or assisting anyone in doing any of the above.
14. TERMINATION OR RESTRICTION We reserve the right, in our sole discretion, to terminate or restrict your access to the Sites, refuse service, or cancel orders.
15. 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, Boardriders. Title to products purchased on the Sites, as well as the risk of loss for such products, passes to you when we deliver these items to the carrier.
16. PRODUCT INFORMATION We attempt to be accurate in describing our products and services on the Sites. We do not warrant that product and service descriptions or other content of the Sites are complete, reliable, current, or error-free. We have made every effort to display and describe 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 our control, we cannot guarantee that your computer's display of any color on the Sites will be accurate. Most of our 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 and may become unavailable at any time. Unless otherwise stated, the prices displayed at the Sites are quoted in U.S. or Canadian Dollars.
17. DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY THE SITES ARE PROVIDED BY BOARDRIDERS ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOARDRIDERS 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, BOARDRIDERS 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 BOARDRIDERS, 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 US 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.
18. OTHER LEGAL PROVISIONS We may discontinue, change, suspend, or cancel the contents, operation, or features of the Sites at any time for any reason, without notice. We reserve the right to update and/or change the terms of this Agreement. This Agreement was last updated on the date indicated above. Your continued use of the Sites indicates your agreement with the then-current terms. Our failure to enforce any provision of this Agreement or respond to a breach by you or other parties will not in any way prevent us from enforcing such right or provision or responding in the future. This Agreement may be assigned by us, 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, that provision will be deemed superseded by a valid provision that matches the intent of the original provision and the remaining provisions will continue in full force and effect. This Agreement shall be governed by and 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). All rights not expressly granted herein are hereby reserved to Boardriders.
19. CONTACT US
If you have any questions or concerns regarding the Sites or this Agreement, please contact us by email at [email protected] or write to us at the following address:
Attention: Legal Department
5600 Argosy Circle, Building #100
Huntington Beach, CA 92649