Terms And Conditions
TERMS AND CONDITIONS
Birdys Scooters and ATVs LLC
Version Date: May 15, 2015
TERMS AND CONDITIONS AGREEMENT
This Terms and Conditions Agreement (“Agreement”) constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (“user” or “you”) and Birdys Scooters and ATVs LLC (formerly Birdys Scooters LLC) and its affiliated companies (collectively, “Company” or “we” or “us” or “our”), concerning your access to and use of the www.birdysscootersandatvs.com website as well as any other media form or media channel related or connected thereto (collectively, the “Website”). Company sells and services a variety of recreational and other vehicles (such as dirtbikes, ATVs, go karts, and scooters) and related equipment (“Company Services”). Return policies, shipping terms, price schedules, warranties, FAQs, schedules and other supplemental terms and conditions or documents may be changed and posted on the Website at any time, and these documents when posted become effective and are hereby expressly incorporated into this Agreement by reference.
The Website is hosted in the United States. Company makes no representation that the Website is appropriate or available in other locations. The information provided on the Website is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Company to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Website from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to purchase products from the Website. If you are a minor, you must have your parent or guardian read and agree to this Agreement prior to purchasing products using the Website. Persons under the age of 13 are not permitted to purchase products from the Website.
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE WHEN ORDERING PRODUCTS FROM THE WEBSITE. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE COMPANY SERVICES OR THE WEBSITE.
Company bills your credit or debit card through an online billing account for purchases of products and services. As prompted by the Website, you must provide your exact billing address, telephone number and credit or debit card information as is on file with your credit or debit card company. Incorrect information will cause your order to be declined. We bill your credit or debit card when we receive your order. You authorize Company to charge your chosen payment provider for any such purchases. We also accept money orders, cashier’s checks, personal and business checks, which all must be in U.S. funds only. Regardless of your form of payment, we do not ship products until payment has been received and clears, which may take up to 10 business days for non-credit or debit card payments.
Posted prices do not include shipping, insurance, duty, customs, importation fees, and sales tax, which will be charged to you when applicable. If there are any chargebacks or reversals from your payment provider we will charge a fee of $35 for each occurrence. If a check is returned for insufficient funds, you will be charged a return check fee of $25. If amounts are owed by the user to Company as a result of a chargeback or otherwise, user agrees to reimburse Company for any legal, court costs and other expenses incurred to collect from user amounts owed.
Company reserves the right to correct any errors or mistakes in pricing that it makes on the Website or when processing an order even if it has already requested or received payment. In such case, Company may refuse or cancel an order and refund any amounts paid. Products purchased or otherwise provided through the Website are for personal use only and are not for resale. All purchases are subject to Company policies and procedures relating to processing, shipping and handling, returns and exchanges set forth in this Agreement and on the Website. All prices are in U.S. dollars.
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Company reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Company may cancel an order at any time if Company determines that it will not be able to fulfill such order, or for any other reason, and upon any such cancellation will notify you and refund any amounts paid by you for such order. Verification of information may be required prior to the acceptance of any order. Prices and availability of products on the Website are subject to change without notice. All turnaround times and delivery dates are estimates and non-binding. We will ship products as they become available. We will keep you informed of any products that you have ordered that are out of stock and/or unavailable for immediate shipment.
RISK OF LOSS
When Company delivers your product to a common carrier for delivery to you, you assume all risk of loss that may occur during shipment. However, Company purchases insurance on your product and includes the cost of insurance in the delivery charges.
EXCEPT AS SET FORTH IN OUR CANCELLATION POLICY AND RETURN POLICY, ALL SALES ARE FINAL AND ABSOLUTELY NO REFUNDS ARE PROVIDED. FOR PARTS COVERED BY WARRANTY, SEE OUR LIMITED WARRANTY TERMS. FREIGHT COLLECT AND COD DELIVERIES WILL NOT BE ACCEPTED.
In order to cancel an order, you must contact us within 24 hours after the order is placed. If the order has been processed but not shipped then you will be charged a non-negotiable non-refundable cancellation fee of $50.00. If an order has been shipped, then the order may not be cancelled and is covered by our Return Policy.
If you choose to return your order once it has been shipped, then you must comply with the following terms:
- You must contact us within 7 days of your receipt of the item to receive a Returned Materials Authorization (RMA) number. The RMA number must appear prominently on the outside of the packaging.
- You will be responsible for the initial shipping freight charge, the return freight charge and also a 35% restocking fee to cover the time, labor and materials invested in preparing the shipment. If you decide to return a product that you purchased that had a promotion of free shipping, then the original shipping costs of that product will be charged to you and deducted from the returned fees.
- All assembly and registration costs are non-refundable. Due to hygienic reasons, we do not accept returns of any helmets.
- Returned products must be received in 100% new, re-sellable condition. A product is not eligible for refund if it has been ridden, worn, used, abused or damaged in any way. The product must arrive complete (including warranty cards, manuals, accessories, promotional items, etc.) and in the original packaging. A copy of your original invoice must be included in the return shipment.
- Only after an inspection of the returned product, a refund check will be issued and mailed to you within 2-3 weeks of receipt. You must meet all the foregoing terms to qualify for a refund.
Except when otherwise specified, all vehicles come with a warranty on defects in the engine, frame and standard parts in accordance with the following terms:
- Warranty begins on date of delivery and continues for 18 days.
- An RMA must be obtained from us prior to returning any parts, which number must appear prominently on the exterior the return packaging.
- All warranted parts must first be sent to us for inspection and verification of defect(s). Until the parts are sent to us, replacement parts will not be sent under the terms of this Limited Warranty.
- All shipping and insurance is the responsibility of the customer.
- This Limited Warranty covers the following parts only:
- ENGINE: All internal lubricated parts, i.e., pistons, piston rings, piston pins, connecting rods, rod bearings, camshaft, camshaft bearings, timing chain, crankshaft, crankshaft main bearings, oil pump, water pump, valves, valve springs, valve guides, valve seats, valve lifters and valve push rods. Additionally, the engine head and cylinder will only be covered if damage is caused solely as a result of the mechanical failure of one or more internal lubricated components listed above. Broken gears damage from outside impact is not covered under this Limited Warranty.
- CHASSIS: Frame, swing arms, A-arms, steering controls, (if not caused by abuse, overweight, jumping or impact).
- ENGINE CASE: The engine case itself will only be covered if the damage caused was solely as a result of the mechanical failure of one or more of the internal lubricated components listed above. Broken gears damage from outside impact is not covered under this Limited Warranty.
- DRIVE SYSTEM: All internal lubricated parts contained within the drive axle housing case, i.e., differential, differential gears, drive shaft, drive axles, CV joints, axle bearings, reverse gears and output shafts. The drive axle housing as well as the reverse gearbox housing, if damaged solely as a result of the mechanical failure of one or more or the internal lubricated components contained the drive axle housing will be covered. Any bent, broken, or damage by outside impact is not covered warranty
- FUEL SYSTEM: For vehicles with carburetor; carburetor, vacuum fuel pump, intake manifold, fuel tank and fuel petcock. For fuel injected vehicles, fuel injectors, fuel pump, fuel rail and fuel pressure regulator.
- ELECTRICAL: Stator, stator pickup, magneto, voltage regulator\ rectifier, CDI, starter relay\ starter solenoid, starter motor, coil, distributor assembly and injector relay.
- COOLING SYSTEM: Radiator, radiator cap, thermostat, thermostat housing, temperature indicator switch, cooling fan motors; water pump and water pump housing.
- BRAKES: Calipers, drum housings, drum brake linkage, reservoirs, rotors, and lines.
- TRANSMISSION (Automatic or Standard): All internal lubricated parts contained within the transmission case, i.e., flywheel, hydraulic shift linkage, kick start spindle, kick start secondary gear and transmission gears. The transmission case itself will be covered if the damage was solely as a result of mechanical failure of one or more of the internal lubricated components contained within the transmission case. Improper shifting of gears by not coming to stop complete can cause damage to internal gears and such damage is not covered under this Limited Warranty.
- This Limited Warranty does not cover the following parts, which list is not all inclusive and may be modified at any time: batteries, belts, brakes and brake pads, chains, clutch, foot peg mount, hand levers, hoses, lights, mirrors, plastic body, seats, shocks, spark plugs, transmission, tires, rims, body panels, fuses, forks, shocks, gaskets, light bulbs, seats, CV boots, oil filter, air filter, fuel filter, filters, clutch wear parts, cables, drive belt, chain, spark plug, any part made from rubber, belts, batteries, sprockets, external springs, clips, nuts, bolts and fasteners.
- Initial assembly and preparation must be performed in accordance with the documentation that is provided by the manufacturer. Additionally, all work must be performed by a professional mechanic (i.e., engine repair shop, motorcycle shop, or local auto repair shop) or an authorized dealer of the manufacturer to assure your vehicle is in good working condition, and you must have (and produce if requested by us) documentation signed by the professional mechanic evidencing that such services were provided. You will need to provide proof of this service when filing a warranty claim, so you must keep your receipts.
- The Limited Warranty is void and does not apply if damage is caused by the following: (1) shipping; (2) misuse or abuse of the vehicle; (3) jumping, stunt riding, modification of any kind, racing, over revving the engine, improper adjustment/operator of the clutch, improper adjustment/operation of brakes, improper gear engagement; (4) improper maintenance (i.e., failure to follow the minimum maintenance and break in requirements, failure to provide proper service documents); (5) accidents or collisions or objects striking the vehicle; (6) driving or riding through water deep enough to cause water to be ingested into the engine; (7) fire or explosion or freezing; (8) natural disasters, theft, or vandalism; (9) use of contaminate or improper fluids or fuel; (10) any modifications not performed by the manufacturer; (11) use of incorrect lubricants, improper initial setup; (12) use of aftermarket parts for repairs or any other reason; (13) use of a non-covered component, or by any component not purchased from us, including any part used for performance enhancement; or (14) use of the vehicle in any form of competitive riding.
- For out of warranty service, the customer is required to pay for parts and shipping both ways. In all cases you must send us the part that needs to be replaced. Failure to do so may result in you getting the wrong part. We are not responsible for wrong parts sent if we do not have your part to exchange and verify correct part numbers. You are responsible to pay for labor to repair or replace components or parts not subject to the Limited Warranty.
Occasionally there may be information on the Website that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. Company reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice. Company reserves the right to revoke any stated offer and to correct any errors, inaccuracies, or omissions (including after an order has been submitted).
Regarding Information You Provide
By using the Company Services, you represent and warrant that:
- all information you submit is truthful and accurate;
- you will maintain the accuracy of such information;
- if you have an account, you will keep your password confidential and will be responsible for all use of your password and account;
- you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use this Website; and
- your use of the Company Services does not violate any applicable law or regulation.
You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Website and (b) maintain and promptly update data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Website (or any portion thereof).
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Website or the Company Services (“Submissions”) provided by you to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not access or use the Website for any other purpose other than that for which Company makes it available. The Website is for the personal use of users only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Company. Prohibited activity includes, but is not limited to:
- systematic retrieval of data or other content from the Website to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company;
- disguising the origin of any information or inquiry transmitted through the Website or using tools which anonymize your internet protocol address (e.g. anonymous proxy) to access the Service;
- tricking, defrauding or misleading Company and other users, especially in any attempt to learn sensitive account information such as passwords;
- making improper use of Company’s support services or submitting false reports of abuse or misconduct;
- engaging in any automated use of the system, such as using any data mining, robots or similar data gathering and extraction tools;
- interfering with, disrupting, or creating an undue burden on the Website or the networks or services connected to the Website;
- attempting to impersonate another user or person or using the username of another user;
- using any information obtained from the Website in order to harass, abuse, or harm another person;
- using the Company Services as part of any effort to compete with Company or to provide services as a service bureau;
- attempting to bypass any measures of the Website designed to prevent or restrict access to the Website, or any portion of the Website;
- harassing, annoying, intimidating or threatening any Company employees or agents engaged in providing any portion of the Company Services to you;
- disparaging, tarnishing, or otherwise harming, in Company’s opinion, Company and/or the Website; and
- using the Website or Company Services in a manner inconsistent with any and all applicable laws and regulations.
INTELLECTUAL PROPERTY RIGHTS
The content on the Website (“Company Content”) and the trademarks, service marks and logos contained therein (“Marks”) are owned by or licensed to Company, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Company Content, includes, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics. All Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Company in the U.S. and/or other countries. Company’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Company Content on the Website is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Systematic retrieval of data or other content from the Website to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company is prohibited. Provided that you are eligible to use the Website, you are granted a limited license to access and use the Website and the Company Content and to download or print a copy of any portion of the Company Content to which you have properly gained access solely for your personal, non-commercial use. Company reserves all rights not expressly granted to you in and to the Website and Company Content and Marks. The use and access rights granted herein do not include any right to use of data mining, robots, spiders or similar data gathering and extraction tools without our prior written permission; provided, however, that a limited exception from the foregoing exclusion is provided to general purpose internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Website, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent and comply with our robots.txt file. “General purpose internet search engine” does not include a website or search engine or other service that is competitive with the Website.
THIRD PARTY WEBSITES AND CONTENT
The Website contains (or you may be sent through the Website or the Company Service) links to other websites (“Third Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Content”). Such Third Party Websites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Websites accessed through the Website or any Third Party Content posted on, available through or installed from the Website, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Websites or the Third Party Content. Inclusion of, linking to or permitting the use or installation of any Third Party Website or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Website and access the Third Party Websites or to use or install any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Website or relating to any applications you use or install from the Website. Any purchases you make through Third Party Websites will be through other websites and from other companies, and Company takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.
Company reserves the right but does not have the obligation to:
- monitor the Website for violations of this Agreement;
- take appropriate legal action against anyone who, in Company’s sole discretion, violates this Agreement, including without limitation, reporting such user to law enforcement authorities; and
- otherwise manage the Website in a manner designed to protect the rights and property of Company and others and to facilitate the proper functioning of the Website.
TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Website, or Company Services, or are otherwise a user or member of the Website, as applicable.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE WEBSITE AND THE COMPANY SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND COMPANY MAY TERMINATE YOUR USE OR PARTICIPATION IN THE WEBSITE AND THE COMPANY SERVICES, DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE POSTED AT ANY TIME, WITHOUT WARNING, IN COMPANY’S SOLE DISCRETION.
In order to protect the integrity of the Website and Company Services, Company reserves the right at any time in its sole discretion to block certain IP addresses from accessing the Website Company Services.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
Company may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on the Website and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Company Services after any such modification becomes effective. Company may also, in its discretion, choose to alert all users with whom it maintains email information of such modifications by means of an email to their most recently provided email address. It is therefore important that you regularly review this Agreement and keep your contact information current in your account settings (if applicable) to ensure you are informed of changes. You agree that you will periodically check the Website for updates to this Agreement and you will read the messages we send you to inform you of any changes. Modifications to this Agreement shall be effective after posting. Additionally, modifications made to this Agreement applicable to dispute resolution shall not apply to disputes arising prior to the effective date of the modification.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Website or the Company Services shall be governed and construed by the law of the State of Indiana, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Company arising out of or related in any respect to this Website and the Company Services shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Madison County, Indiana; subject, however, to the right of Company, at the Company’s sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to the Website and/or the Company Service (including your visit to or use of the Website and/or the Company Service) be instituted more than two (2) years after the cause of action arose.
Occasionally there may be information on the Website that contains typographical errors, inaccuracies or omissions that may relate to product and service descriptions, pricing, availability, and various other information. Company reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
WITHOUT LIMITING THE FOREGOING, THE COMPANY DISCLAIMS ANY LIABILITY AS TO THE ACCURACY OR COMPLETENESS OF EACH ITEM DESCRIPTION. ALL PRODUCT DESCRIPTIONS ORIGINATE FROM THE MANUFACTURER OF THE ITEM.
We have done our best to display as accurately as possible the colors of the products shown on this Website. However, because the colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate. The Company reserves the right to change any and all content, software and other items used or contained in the Website and any Company Services offered through the Website at any time without notice.
YOU AGREE THAT YOUR USE OF THE WEBSITE, COMPANY SERVICES, AND PRODUCTS WILL BE AT YOUR SOLE RISK. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE, COMPANY SERVICES, PRODUCTS AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS WEBSITE AND, EXCEPT FOR LIMITED WARRANTY TERMS PROVIDED BY COMPANY, ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, COMPANY SERVICES AND PRODUCTS, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS OR DEFECTS IN ANY PRODUCTS, CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
ALL WARRANTIES APPLICABLE TO ANY PRODUCT THAT YOU PURCHASE, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, WILL BE ONLY THOSE WARRANTIES PROVIDED BY THE MANUFACTURER, WHICH COMPANY WILL PASS THROUGH TO YOU TO THE EXTENT AUTHORIZED BY THE MANUFACTURER.
The Company reserves the right to change any and all content, software and other items used or contained in the Website and any Company Services offered through the Website at any time without notice.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE WEBSITE, COMPANY SERVICES OR PRODUCTS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE COMPANY SERVICES AND PRODUCTS DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING AND $50.
CERTAIN STATE LAWS 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 OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your use of the Company Services, products, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate, at your expense, with Company’s defense of such claims. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
From time to time, Company may conduct sweepstakes that entitle the winners to prizes. Each sweepstakes has its own terms and conditions, set forth in the official rules for that sweepstakes.
Except as explicitly stated otherwise, any notices given to Company shall be given by email to address listed below. Any notices given to you shall be given to the email address you provided during the registration process, or such other address as each party may specify. Notice shall be deemed to be given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail or discussion forum postings.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Company Services and products. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company’s reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. Upon Company’s request, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
In order to resolve a complaint regarding the Company Services or to receive further information regarding use of the Company Services, please contact Company as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
Birdys Scooters and ATVs LLC
912 E. 53rd St., Suite B
Anderson, IN 46013