Last Updated: May 13, 2024
Welcome to www.tacklewarehouse.com and any mobile applications (collectively, the "Website") owned and operated by Wilderness Sports Warehouse, LLC ("Company," "us" or "we"). Please review the following terms and conditions ("Terms of Use") that govern your visit to the Website, and your use of the Website and the related products and services available on or through the Website and all of your interactions with the Company (collectively, the "Service(s)"). Company reserves the right, at any time, to modify or update the Services and these Terms of Use.
Your use of the Services is subject to and you agree to be bound by the Terms of Use, Privacy Policy, and any further policies or terms that govern your use of the Website and Services, which are all incorporated herein by reference (collectively, this "Agreement"). Use of the Services is further subject to the additional terms, disclaimers, caveats, and notices that may appear elsewhere on the Website and that are contained in any other written agreement between you and us. Use of the Website and Services is voluntary. IF AT ANY TIME YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, THEN YOU ARE NOT AUTHORIZED TO ACCESS, BROWSE OR USE THE WEBSITE OR SERVICES, AND YOU MUST DISCONTINUE USE OF THE WEBSITE AND SERVICES IMMEDIATELY.
As our business changes from time to time, this Agreement may likewise change. We reserve the right to change or modify the terms and conditions that govern your use of the Website, Services and this Agreement at any time as provided herein, with or without notice to you, at our discretion. You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting the Website to see the current Agreement in effect and any changes that may have been made to it. Any changes to the Agreement are effective upon their posting and you agree to be bound by the terms and conditions as changed. We may terminate your right to and deny you access to the Services, or remove any material you have posted at the Website if, in our sole discretion, you fail to comply with any term or provision of this Agreement, or for any other reason whatsoever. Except as otherwise provided herein, however, Company undertakes no obligation to police, supervise, or monitor materials posted to the Website by you or other third parties.
Use of the Website is limited to persons who are thirteen (13) years of age or older. The Website is not directed to persons under the age of 13 and the policy of Company is NOT to knowingly collect any personal information from persons under the age of 13. If you are under the age of 13, you should leave the Website without providing any information about yourself. Any access to or use of the Website by anyone under the age of majority requires consent to this Agreement by a parent or legal guardian. By accessing or using the Website or Services, you represent and warrant to us that you are either a legal adult or, if under the age of majority, have obtained proper consent from a parent or legal guardian to your use of the Website and this Agreement. By using the Website or Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
We provide the Website for use by persons located in the United States. We make no claims that the Website or Services are accessible or appropriate outside of the United States. You are responsible for compliance with local laws if and to the extent local laws are applicable including, without limitation, all applicable laws, rules and regulations regarding the transmission of data exported from the United States.
Company imposes certain restrictions on your permissible use of the Website and Services. You are prohibited from violating or attempting to violate any security features of the Website and Services or assisting any third party in doing so, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Website, or any associated system, service or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Website, overloading, "flooding," "spamming," "mail bombing" or "crashing"; (d) using the Website or Services to send unsolicited email including, without limitation, promotions or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any email or post using the Website or Services; (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Website or Services; (g) using any data mining, robots, crawling, data gathering and extraction tools, whether automatic or manual, or other means not purposely made available by us, including to develop or improve any software program, algorithm, or machine learning or artificial intelligence model; or (h) engaging in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website or Services, or which, as determined by us, may harm Company or users of the Website or Services. Any violation of system or network security may subject you to civil and/or criminal liability. Without limiting the foregoing, you may not use "bots," spiders or intelligent agent software (or similar technologies) for any purposes other than accessing publicly posted portions of the Website and Services and only for purposes consistent with this Agreement. You may not circumvent any access or use restrictions, data encryption or content protection related to the Website or Services. You may not data mine the Website or in any way cause harm to the Website or Services.
Unless otherwise noted, the design of the Website, the Website as a whole, and all materials that are part of the Website and Services (collectively, "Content") are copyrights, trademarks, trade dress or other intellectual properties owned, controlled or licensed by Company or its subsidiaries and affiliates. You acknowledge and agree that any Content used in connection with the Website or Services, including any software accessible through the Website or Services, contains Company's proprietary and confidential information that is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. This Agreement does not limit any rights that Company may have under trademark, trade secret, copyright, patent or other laws.
No right, title or interest in any of the information, material, or other Content of the Website or Services is granted to you under any circumstances, and Company reserves and retains all intellectual property rights in and to the Website, Services and their Content. Linking or framing to the Website or any of its Content is prohibited without the prior written permission of Company.
Except as expressly noted herein, you may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of, or exploit in any way, any of the Content or the Website or Services. Unauthorized use or copying (including electronic copying or downloading) of the Website, Services and Content without Company's express written consent is expressly prohibited by law, and may result in severe civil and criminal penalties.
Opinions, advice, statements, testimonials, reviews, offers or other information or content made available on the Website or through our Services, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.
As a user of the Website and Services, you may be able to post content on the Website or Services or on Company's blog or social media pages, including, without limitation, by providing testimonials or reviews, leaving comments, uploading pictures or videos, etc. (“User Content”). You are solely responsible for your User Content. However, Company reserves the right to redact, block or remove any communications or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of copyright, trademark or other intellectual property rights, (d) in violation of any law, regulation or this Agreement, or (e) offensive or otherwise unacceptable to Company in its sole discretion. Company reserves the right, but undertakes no duty, to review, edit, move or delete any communication or material provided for display or placed on the Website or Services or on Company's blog or social media pages, in its sole discretion, without notice. If at any time Company chooses, in its sole discretion, to monitor the content, Company nonetheless assumes no responsibility for the content, no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the user submitting any such content. You agree that Company shall under no circumstances be held liable on account of any action it takes, in good faith, to remove from the Website or restrict access to material that it or any user considers to be obscene, lewd, lascivious, discriminatory, violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
Any submission of information or copyrightable works of any nature by you to the Website or to Company through the use of the Website, Services, any of Company's blogs or social media pages or accounts, or otherwise, shall be deemed to constitute a release by you to the public domain, for use by Company and others, without restriction, except those restrictions set forth in our Privacy Policy with respect to personal information. All comments, feedback, ideas, suggestions, materials, information and other submissions disclosed, submitted or offered to Company using the Website, Services or otherwise are not confidential and will become and remain Company's property. By submitting any such information or material, you represent and warrant your right to release such information and material for use in the public domain without restriction.
By posting content to any public area of the Website, Services, or Company's blog or social media pages or accounts, you hereby automatically grant and represent and warrant that you have the right to grant to Company, our affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, royalty-free, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.
If you provide or post any information, materials, text, images, music, video, or other content or works of any nature (collectively, "Posted Content") at or through the Website, Services or on Company's blog or social media pages or accounts, you represent, warrant, and agree that any such Posted Content:
It is our policy to respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act ("DMCA"). If you believe that your work has been copied and is accessible on our Website in a way that constitutes copyright infringement, you may notify Company's designated Copyright Agent at the address below. Inquiries not compliant with the procedure outlined below may not receive a response. When a valid DMCA notification is received, we will respond by taking down the offending content. We will then take reasonable steps to contact the owner of the removed content so a counter-notification may be filed. Upon receipt of a valid counter-notification, we will generally restore the content in question, unless we receive notice from you, the notifying copyright owner, that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity. Company may provide copies of such notices to the participants in the dispute or to any other third parties, at our discretion and as required by law. Company's Privacy Policy does not protect information provided in these notices.
Notification
If you believe that your work was copied or posted on our Website in a way that constitutes copyright infringement, please contact our designated Copyright Agent:
Privacy Department 181 Suburban Road San Luis Obispo, CA 93401 privacy@warehousesports.com 888-424-1882 Fax: 805-540-7940
Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that Company’s content is infringing.
Your notification must include the following information:
Note, however, that if you posted any materials on the Website or Services, by submitting, posting or displaying your content on the Website or Services, you granted Company and its end users a worldwide, royalty-free, non-exclusive license as specified in these Terms of Use.
Only DMCA notices should go to the Company Copyright Agent designated above. Communications regarding other matters directed to that address or DMCA notices that do not comply with the requirements of the DMCA may be ignored.
Upon receipt of your written notification containing the information as outlined above:
Counter Notification
To be effective, a Counter Notification must be a written communication provided to Company's designated Copyright Agent that includes substantially the following:
Upon receipt of a Counter Notification containing the information as outlined above:
Company shall replace the removed material and cease disabling access to the material in no less than 10 and no more than 14 business days following receipt of the Counter Notification, unless Company's designated Copyright Agent first receives notice from you that you have filed an action seeking a court order to restrain the Alleged Infringer from engaging in infringing activity relating to the material on our Website.
Account Termination
Company may, in appropriate circumstances, terminate an account holder or user of the Website or Services if he or she is a repeat infringer. If you believe that an account holder or user is a repeat infringer, please follow the instructions above to contact Company's DMCA Copyright Agent and provide information sufficient for us to verify that the account holder or user is a repeat infringer.
Company does not accept or review unsolicited ideas, suggestions, proposals or materials, including but not limited to ideas regarding new or improved products, designs or artwork, advertising or marketing campaigns, or technologies (the “Submission”). Notwithstanding such policy, any Submission communicated to Company through this Website or otherwise shall be the sole and exclusive property of Company without any compensation to you and may be used or redistributed by Company for any purpose and in any way without any compensation to you. Company has no obligation to return the Submission to you or respond to you in any way and no obligation to keep the Submission confidential.
Information that you provide to Company via the Website is subject to our Privacy Policy. For more information, please read our full Privacy Policy.
We use technologies that maintain records of your browsing session, chats, and other activities on the Website. These technologies may include session replay that maintains a record of your interactions with our Website, chat providers that maintain a transcript of your chats, cookies, pixels, and other tracking technologies that share some of your interactions with our Website, as well as other technologies that collect and share your interactions with our Website. We use this information for quality control, customer service, fraud prevention and security, and marketing purposes and in accordance with our Privacy Policy.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL USE OF THE WEBSITE AND SERVICES, ANY INFORMATION, CONTENT, PRODUCTS, OR SERVICES CONTAINED AT OR PROVIDED THROUGH OR PURCHASED FROM THE WEBSITE OR SERVICES, AND ANY FUNCTIONALITY OR SOFTWARE OR PROGRAMMING CONTAINED AT OR PROVIDED THROUGH THE WEBSITE OR SERVICES, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT GUARANTEE OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY, PROMISE OR GUARANTEE OF ANY KIND THAT (A) OPERATION OF THE WEBSITE AND SERVICES WILL BE CONTINUOUS, TIMELY, UNINTERRUPTED, SECURE, OR THAT THE WEBSITE OR ITS SERVER ARE FREE OF ERRORS, VIRUSES OR OTHER HARMFUL EFFECTS; (B) THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE, PRODUCTS OR SERVICES WILL BE EFFECTIVE, TYPICAL, ACCURATE OR RELIABLE; AND (D) THE QUALITY OF ANY PRODUCTS, SERVICES OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE WEBSITE OR SERVICES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. YOUR USE OF THE WEBSITE, PRODUCTS AND SERVICES IS AT YOUR OWN RISK. WE EXPECT THAT YOU WILL USE CAUTION AND COMMON SENSE WHEN USING THE WEBSITE AND SERVICES.
FURTHER, WITHOUT LIMITING THE FOREGOING, ALL INFORMATION PROVIDED ON THE WEBSITE AND SERVICES IS WITHOUT WARRANTY AS TO ITS COMPLETENESS, TIMELINESS, ACCURACY, SUITABILITY OR AUTHENTICITY. YOU SHOULD CONDUCT YOUR OWN DUE DILIGENCE AS TO THE TRUTH, ACCURACY, COMPLETENESS, AND CONTINUING VALIDITY OF ANY INFORMATION SET FORTH IN OR REFERENCED ON THE WEBSITE OR SERVICES. LIKEWISE, COMPANY DOES NOT WARRANT THE ACCURACY OF ANY THIRD PARTY CONTENT CONTAINED WITHIN OR REFERRED TO ON THE WEBSITE OR SERVICES, INCLUDING ANY LINKS TO THIRD PARTY WEBSITES. COMPANY IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY IN WHOLE OR IN PART TO YOU.
UNDER NO CIRCUMSTANCES OR LEGAL THEORY SHALL COMPANY OR ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, DISTRIBUTORS, VENDORS, ATTORNEYS OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES (WHETHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHERWISE) BASED UPON OR ARISING FROM YOUR USE OF OR INABILITY TO USE THE WEBSITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF YOU ARE DISSATISFIED WITH THE WEBSITE OR SERVICES, OR ANY MATERIALS ON THE WEBSITE OR SERVICES, OR WITH ANY OF THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE AND SERVICES.
BY USING ANY PRODUCT(S) PURCHASED THROUGH THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE FULLY RESPONSIBLE FOR ANY POTENTIAL EFFECTS, PROPER HANDLING AND PROPER USAGE OF SUCH PRODUCT(S), AND YOU ACKNOWLEDGE AND ASSUME ANY RISKS THAT MAY COME THEREWITH, INCLUDING, WITHOUT LIMITATION, ANY PHYSICAL INJURIES, HEALTH EFFECTS, ALLERGIC REACTIONS, PHYSIOLOGICAL CHANGES AND EFFECTS, BODY REACTIONS, AND ANY LOSS OR DAMAGES THAT MAY OCCUR THEREAFTER.
THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL: (I) ONLY APPLY TO THE EXTENT PERMITTED BY LAW, AND (II) NOT APPLY TO (A) LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND (B) DEATH OR BODILY INJURY SOLELY RESULTING FROM OUR ACTS OR OMISSIONS.
IN THE EVENT YOU HAVE A DISPUTE WITH ONE OR MORE USERS OF THE WEBSITE OR SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY DISPUTE REGARDING ANY TRANSACTION OR USER GENERATED CONTENT) OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR OTHERWISE INTERACT WITH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY SOCIAL MEDIA SITE, YOU HEREBY AGREE TO RELEASE AND FOREVER DISCHARGE COMPANY AND ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SUPPLIERS, DISTRIBUTORS, VENDORS, ATTORNEYS AND AFFILIATES (COLLECTIVELY, THE "RELEASED PARTIES") FROM ANY AND ALL RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE WEBSITE AND SERVICES, TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, RELEASED PARTIES FROM AND AGAINST ALL CLAIMS, DEMANDS, LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, UNLAWFUL USE OR OTHER MISUSE, OR INABILITY TO USE THE WEBSITE OR SERVICES, YOUR BREACH OF THIS AGREEMENT, OR OTHERWISE RELATING TO THE BUSINESS WE CONDUCT THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN YOU AND ANY OTHER THIRD PARTY), ANY CONTENT POSTED BY YOU OR ON YOUR BEHALF TO THE WEBSITE OR SERVICES, ANY USE OF ANY SERVICE PROVIDED BY A THIRD PARTY PROVIDER, OR ANY USE OF A SERVICE OFFERED BY US THAT INTERACTS WITH A THIRD PARTY WEBSITE, INCLUDING ANY SOCIAL MEDIA SITE. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. 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 YOU SHALL NOT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
To the extent any claim or controversy relating to or arising from the use of the Website or Services, including, but not limited to, any transactions made or entered into at the Website or Services, any information, content, products, services or promotions herein contained or provided from the Website or Services, or any functionality, software or programming contained or provided at or from the Website or Services, is not required to be arbitrated or filed in small claims court in accordance with the Arbitration Agreement, such action must be brought in the state or federal courts located in the Superior Court of the State of California, in and for the County of San Luis Obispo or, where applicable, the federal District Court sitting in the County of Los Angeles, State of California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
Except as otherwise described in this Agreement, this Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION OR CLAIM ARISES, OR THE CAUSE OF ACTION OR CLAIM SHALL BE FOREVER BARRED.
We try to address any disputes without the need to initiate a formal legal case. You agree that prior to submitting any dispute or claim to arbitration for resolution, you and we agree to make a good faith effort to resolve it informally, including having at least one telephone or videoconference conversation between you, personally, and us. To initiate this good faith effort to informally resolve a dispute you agree to notify us in writing by email at privacy@warehousesports.com, of the nature of the dispute, the basis for your claims and the resolution that you are seeking, including any monetary amount, with as much detail as you can provide so that we can gain a sufficient understanding of the dispute. Within the sixty (60) days following our receipt of this notice, you agree to engage in good faith efforts to resolve the dispute, including personally participating in a telephone call or videoconference with us. You may have a lawyer attend the call with you if you wish. If the dispute is not resolved within that sixty (60) days (which period can be extended by agreement of the parties), you or we may commence an arbitration to resolve the dispute consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to commencing an arbitration. You and we agree to toll any applicable statute of limitations and filing fee deadlines while the parties engage in this informal dispute resolution process from the date we receive your notice to the date an action is commenced or the conclusion of the 60-day period described above, whichever is sooner. A court of competent jurisdiction shall have the authority to enforce this condition precedent, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
You and Company agree that, except as set forth below, we will resolve any controversies, claims, counterclaims, or other disputes between you and Company or you and a third-party agent of Company (a “Claim”) through final and binding arbitration instead of through court proceedings in accordance with the Consumer Arbitration Rules of the American Arbitration Association (“AAA Rules”). This arbitration agreement applies to any existing or future Claims that you have not individually filed in a court of law or in arbitration prior to the date you agreed to these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. You and we hereby waive any right to a jury trial of any Claim. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act and federal arbitration law apply to this agreement. A court of competent jurisdiction has exclusive authority to determine the existence, scope, and validity of the arbitration agreement and the arbitrability of any claim or counterclaim, including, without limitation, whether any conditions precedent to the commencement of an arbitration have been completely satisfied and any objections with respect to any of the foregoing.
To begin an arbitration proceeding, you must send us an individual letter signed by you requesting arbitration and describing your claim at Arbitration Department 181 Suburban Road San Luis Obispo, CA 93401. This letter must be sent at least ten (10) business days before you initiate an arbitration proceeding against us.
Any party to the arbitration may at any time serve an offer of compromise in writing upon any other party to the action. Offers of compromise pursuant to these Terms will be adjudicated and interpreted in accordance with California Code of Civil Procedure section 998.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or Company from seeking action by federal, state, or local government agencies. You and Company also have the right to bring qualifying claims in small claims court or transfer qualifying claims to small claims court. Either party may elect that a Claim be filed exclusively in a small claims court of competent jurisdiction by providing notice to the other party. In the event a Claim has already been filed in arbitration, the party who has filed that Claim will, within ten (10) business days of receiving such a notice, withdraw their Claim from arbitration. The parties will then proceed with the Claim exclusively in small claims court. A party may apply to any court of competent jurisdiction to enforce the terms of this paragraph. In addition, you and Company retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions. Any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor Company may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. You may not bring Claims in arbitration on a class or representative basis. The arbitrator can decide only your and/or Company’s individual Claims.
If for any reason a Claim proceeds in court rather than in arbitration, you and Company each waive any right to a jury trial. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
This Arbitration Agreement Section of the Terms will survive the termination of your relationship with Company.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR COMPANY WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Mass Arbitration Process Requirements
If twenty-five (25) or more similar claims are asserted against Company at or around the same time by the same or coordinated counsel or are otherwise coordinated (and your Claim is one such Claim) (a “Mass Arbitration”), you understand and agree that the resolution of your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules. Twenty (20) claims shall be selected to proceed to individual arbitration proceedings as part of a first batching process, ten (10) of which will be selected by the claimants and ten (10) of which will be selected by Company. The remaining claims shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. If the parties are unable to resolve the remaining claims after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, for which Company will pay the mediator's fee. If the parties are unable to resolve the remaining claims through mediation at this time, then forty (40) claims shall be selected to proceed to individual arbitration proceedings as part of a second batching process, twenty (20) of which will be selected by the claimants and twenty (20) of which will be selected by Company. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining claims shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. In any batching process, a single arbitrator shall preside over each proceeding, and only one proceeding may be assigned to each arbitrator unless the parties agree otherwise. If the parties are unable to resolve the remaining claims after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, for which Company will pay the mediator's fee. If the parties are unable to resolve the remaining claims in mediation at this time, this staged process shall continue with no more than one hundred (100) claims proceeding at any time in a staged order that is selected randomly or by the AAA, until all the coordinated claims, including your Claim, are adjudicated or otherwise resolved. At any time during these proceedings, we agree to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims. Any applicable statute of limitations on your Claims and filing fee deadlines shall be tolled for claims subject to this section regarding “Mass Arbitration Process Requirements” from the time claims are selected for the first set of batching proceedings until the time your Claim is selected to proceed in arbitration, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this section regarding “Mass Arbitration Process Requirements” and, if necessary, to enjoin the filing or prosecution of arbitration demands against Company Should a court of competent jurisdiction decline to enforce these “Mass Arbitration Process Requirements,” you and we agree that your and our counsel shall engage in good faith and with the assistance of a Process Arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.
For the purposes of this section regarding mass arbitration, regardless of the provisions in the arbitration agreement above about the prohibitive costs of individual arbitration for you, if your lawyer or their business partner is directly or indirectly paying the arbitration fees and costs in a mass arbitration on your behalf, your lawyer must split the fees and costs charged by the arbitrator and/or arbitration provider equally with us as they become due. In this situation, in the final decision, the arbitrator can divide the fees and costs of the arbitration provider and the arbitrator among the parties in amounts they see fit to ensure a fair division among the parties provided that the amount you are ordered to pay does not exceed the amount already paid by your lawyer.
This Agreement is effective unless and until terminated by Company. If, in Company's sole discretion, you fail to comply with any term or provision of this Agreement, Company may terminate your access to or use of the Website or Services. In the event of termination or denial of access by Company, you are no longer authorized to access the Website or Services, and the restrictions imposed upon you with respect to material copied or downloaded, and the disclaimers and limitations of liabilities, dispute resolution and arbitration agreement, and choice of law and venue set forth in this Agreement, shall continue in force and effect to the fullest extent allowed under applicable laws.
The Website may include links to other Internet sites maintained by third parties ("Linked Sites"). Company provides Linked Sites to you solely as a convenience, and the inclusion of Linked Sites does not imply endorsement by Company of the Linked Sites. You access Linked Sites at your own risk, and by accessing them, you leave the Website. Linked Sites are not under the control of Company and Company is not responsible for the content of any Linked Sites.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Website and Services (or any part thereof) with or without notice to you in our sole discretion. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website and Services.
In the course of your use of the Website or Services, we may ask you for certain information, including your name, email address, phone number, mailing address, billing address, shipping address, and payment card information (collectively, "Account Information"). If you open an account or commence any transaction of business at or on the Website or through the Services, you may be required to complete the registration process by providing certain additional information and registering a username and password. Your Account Information must be up-to-date and accurate at all times. Should your information change, you must update it in your user profile. You agree that you are solely responsible for the accuracy and content of your Account Information. You are further responsible for maintaining the confidentiality of your username and password and also for all activities that take place under your username and/or account. You agree to: (a) immediately notify us of any unauthorized use of your username, password and/or account, or any other breach of security; and (b) ensure that you log out of your account at the end of each Website session. Consistent with and without limiting the scope of provisions limiting liability elsewhere in this Agreement, in no event will Company be liable for any indirect or consequential loss or damage of any kind whatsoever resulting from the disclosure of your username and/or password or your failure to comply with this section. You may not use another person's username or account at any time without the express permission of the account holder. We reserve the right to deny registration of any account at our discretion and to terminate your access to all or any part of the Website and Services if you provide inaccurate, false or misleading information in connection with your account.
For product availability and pricing questions, please call us at 800.300.4916 and we will be happy to help you with your inquiry. Prices are quoted in U.S. dollars and are subject to change at any time. Discounts are usually limited time offers and may not be combined with any other offers. Company makes no representations as to how long a limited time offer will be available or whether and for how long the product was sold at the manufacturer's suggested retail price prior to any discount being offered. We reserve the right to limit the quantities of any products or services that we offer through the Website at our sole discretion.
All features, content, specifications, products and prices of products described at or depicted on the Website and Services are subject to change at any time without notice. All product descriptions are approximate, provided for convenience only and may be subject to substitutions where indicated. We make reasonable efforts to accurately display the attributes of our products, including their respective sizes and colors; however, the actual size, color and other attributes you see may vary and will depend on your computer system, and as such we cannot guarantee that your computer will accurately display such attributes. While Company attempts to be as accurate as possible in its product descriptions on the Website and Services, Company does not warrant that product descriptions or other Content is accurate, complete, reliable, current or error-free. If a product offered by Company is not as described, your sole remedy is to return it in unused condition pursuant to Company's Return Policy, citing the reasons the product is not as described.
From time to time there may be information on our Website or through our Services that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. Company reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). If you do not wish to continue your purchase after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your order.
You represent and warrant that you are buying products from the Website for your own personal or household use only, and not for resale or export. Company reserves the right to refuse any order you place with us in violation of this section or these Terms of Use. For example, we reserve the right to limit or cancel orders that, in our sole judgment, appear to be placed by dealers, resellers or unauthorized distributors or wholesalers. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, per account, per payment method, per billing and/or shipping address or per order. In the event we modify or cancel an order, we will attempt to notify you by using the e-mail, billing address or phone number provided at the time the order was placed.
It is your responsibility to ascertain and obey all applicable local, state, federal and any other applicable laws with respect to the possession and use of any item purchased from the Website or through the Services. By placing an order, you represent and warrant that the products ordered will be used only in a lawful manner.
For quality assurance, Company may record and/or monitor incoming calls to, and outgoing calls from, Company. By accepting this Agreement, you also consent to any and all call recording and monitoring performed by Company or its agents, employees and/or affiliates.
Company's Return Policy is accessible here and is incorporated into this Agreement in its entirety. Such Return Policy may change from time to time.
When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is valid and compliant with the shipping restrictions contained on the Website. All purchases from the Website or through the Services are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from the Website or through the Services pass to you upon delivery of the items to the third party carrier. You are responsible for filing any claims with the applicable carrier for any damaged and/or lost shipments.
To place an order on the Website, you must be at least 18 years of age and abide by all applicable local, state, federal and other applicable laws and regulations.
THIS WEBSITE AND THE SERVICES ARE NOT DESIGNED TO AND DO NOT PROVIDE MEDICAL ADVICE. Many of us at Company are athletes who train and who have suffered various injuries practicing our sports, but we are not doctors, nurses or qualified health care providers. Our employees do not provide medical advice, professional diagnosis, opinion, treatment or medical services to any of our customers. Any information provided through the Services or by our employees is for educational purposes only. The information provided on our Website, through links to other websites, or by our employees is not a substitute for medical advice of professional care, and such information should not be used in place of a visit, call, consultation or the advice of your physician or health care provider.
Company is not liable or responsible for what may be perceived as medical advice, course of treatment, diagnosis or any other information, in connection with any services or products you learn about or obtain through the Services, linked websites or through conversations with any of our employees. This information, including but not limited to, text, graphics, images, and other material contained on our Website are for informational purposes only.
If you believe you have a health problem, or if you have any questions regarding your health or a medical condition, you should promptly consult your physician or health care provider. We ask that you do not share confidential information with us, either by phone, email, chat or other means including but not limited to: your birth date, social security number, or your confidential medical information. If you do share this information with us, you do so at your own risk. Company is not liable for the disclosure of such information or any claims arising therefrom. Always seek the advice of your physician or other qualified health care provider with any questions you may have regarding a medical condition or treatment and before undertaking a new health care or workout regimen. Never disregard medical or professional advice, or delay seeking it, because of something you read though the Services, on a linked website, or because of a conversation with one or more of our employees. Never rely on any “medical” or what you perceive as medical information from our Services, or employees, in place of seeking professional medical advice.
Headings in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Nothing herein shall be deemed to create an agency, partnership, joint venture, employee-employer or franchise-franchisee relationship of any kind between Company and you or any other person or entity. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to other or similar breaches. This Agreement, including the other policies referenced herein, shall constitute the entire agreement and understanding between Company and you with respect to use of the Website and Services and supersedes any and all prior agreements and understandings between you with respect to the subject matter addressed herein. This Agreement is binding on Company and you and on each of your successors and assigns. Except for the Mass Arbitration Process Requirements section, if any of the terms or conditions in this Agreement is deemed invalid, void, or for any reason unenforceable, that term or condition will be deemed severable and will not affect the validity and enforceability of any remaining term or condition. However, if a Claim is part of a Mass Arbitration, and any part of the Mass Arbitration Process Requirements section is found to be invalid, void, or unenforceable, the Arbitration Agreement & Waiver of Certain Rights, including the Mass Arbitration Process Requirements section, shall be severed in its entirety.
If you have any complaints or concerns regarding the Website or Services, please contact us at 800.300.4916. For California residents, the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted by telephone at (800) 952-5210 or (916) 445-1254 or by writing the California Department of Consumer Affairs, Consumer Information Center at 1625 North Market Blvd., Suite N-112, Sacramento, California 95834.