We are pleased to welcome you to Combat Aquatics, LLC’s, website (the “Site”). Combat Aquatics, LLC may be referred to as a “Party” or “Us”, “us”, or “We”, or “we.” You may be referred to as “You” or “you” or “Party.” Each Party may be referred to as a Party.
Please review the following terms and conditions (“T&C”) concerning your use of this Site. You agree to follow and be bound by the T&C if you use our Site. If you do not agree with any of these terms and conditions, do not use the Site.
You understand and agree that information about you and your transaction will be shared with other companies for the purpose of processing your transaction, including credit card processing and identity verification vendors.
PATENT, COPYRIGHT & TRADEMARK RIGHTS
All images, graphics, text and other content used in connection with the Site are protected by trademark, copyright and other proprietary laws and treaty provisions. You may not download (except where invited), reproduce, modify, publish, distribute, transmit, transfer, sell or modify any portion of this Site without our express written authorization. Please also refer to our Intellectual Property Policy here for additional information about our patents and trademarks.
In order to access and use the Site, we may require that you register by providing your name, creating a password, and providing certain additional information, which may include, without limitation, your email address, legal name, date of birth, country of residence, zip code, your physical address, telephone number(s), applicable payment data and information. We reserve the right to deny access, use and registration privileges to any user of the Site if we believe there is a question about the identity of the person trying to access the Site. We shall not be responsible or liable for any loss or damage arising from your failure to comply with this section.
You represent and warrant that all registration and account information you submit is truthful and accurate and you shall maintain and promptly update the accuracy of such information. Further, you are responsible for maintaining the confidentiality of your password, and you shall be responsible and liable for any access to or use of the Site by you or any person or entity using your password, whether or not such access or use has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent, including, without limitation, any fee-based transactions.
By using the Site, you warrant that you are over 18 years of age, that you are providing us with accurate, truthful information, and that you have the authority to use the Site. We reserve the right to refuse Site for any reason or no reason. If you are under 18 years of age, you agree that you have consent as required by law.
In addition, you agree that, while using the Site, you shall not:
(a) submit, post, email, display, transmit or otherwise make available through the Site any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(b) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Site;
(c) impersonate any person or entity or falsely state or otherwise represent your affiliation with a person, or entity;
(d) engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
(e) modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Site or the rights or use or enjoyment of the Site by any other user;
(f) submit, post, email, display, transmit or otherwise make available through the Site any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
(g) submit, post, email, display, transmit or otherwise make available through the Site any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(h) solicit passwords or personal identifying information for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information; or
(i) modify, reverse engineer, decompile or disassemble any part of the Site, whether in whole or in part, or create any derivative works from any part of the Site, or encourage, assist or authorize any other person to do so.
You have no rights except set forth in the T&C to any Intellectual Property rights and ownership directly or indirectly related to the Site are held by us. “Intellectual Property” means: (i) patents, patent applications and patent rights; (ii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work registrations; (iii) any right relating to the existence or protection of trade secrets and confidential information; (iv) design, implementation, schema structure and know-how related to system architecture and conceptual engineering; (v) any right analogous to those set forth above and any other proprietary rights relating to intangible property and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing now existing, hereafter filed, issued, created or acquired.
You will indemnify, defend and hold harmless Combat Aquatics, LLC and all of its direct and indirect officers, directors, employees, agents, successors and assigns (each, an “Indemnified Person”) from any and all third party claims, demands, actions or threat of action (whether in law, equity or in an alternative proceeding), losses, liabilities, damages (including taxes), and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties (collectively, “Losses”), and threatened Losses due to, arising from or relating to any use of the Site by You or your vendors, agents, suppliers, employees, consultants, referred parties, and the like (“Indemnified Claim”). No settlement or compromise that imposes any liability or obligation on any Indemnified Person will be made without the Indemnified Person’s prior written consent (not to be unreasonably withheld). If You fail to defend an Indemnified Person as provided in this Section after reasonable notice of an Indemnified Claim, You will be bound (i) to indemnify and reimburse the Indemnified Person for any Losses incurred by any Indemnified Person, in its sole discretion, to defend, settle or compromise the Indemnified Claim; and (ii) by the determination of facts common to an action and subsequent action to enforce the Indemnified Person’s reimbursement rights.
You (the “Indemnifying Party”) shall, to the extent permitted by law, indemnify, defend and hold harmless Combat Aquatics, LLC and its respective employees, officers, directors, agents and representatives (the “Indemnified Party”) from and against any and all third party liabilities, actual or alleged claims, actions, losses and damages (collectively, a “Claim”) to the extent caused by or arising out of the gross negligence, willful misconduct, or violation of law of the Indemnifying Party or any agent of the Indemnifying Party in the course of its performance under this T&C, including but not limited to personal injury, death, damage to property (tangible or intangible), infringement of intellectual property rights, and/or injury, sickness, or disease to persons (including death), infringement of civil rights or other tortious acts settlements, judgments, court costs, reasonable attorneys’ fees, fines, penalties and other litigation expenses. This indemnity shall apply to all Claims against the Indemnified Party made or threatened by, or in the name of or on behalf of the Indemnifying Party’s employees which arise in the course of their employment. The Indemnifying Party hereby waives any defense it may otherwise have under applicable workers compensation laws.
DISCLAIMER AND LIMITATION OF LIABILITY
Without limiting the foregoing, Combat Aquatics, LLC is not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Site. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Site.
Notwithstanding anything to the contrary, except for bodily injury of a person, Combat Aquatics and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this T&C or Terms and Conditions related thereto under any contract, negligence, strict liability or other theory: (A) For error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement or substitute goods, services or technology or loss of business; (B) For any indirect, exemplary, incidental, special or consequential damages; (C) For any matter beyond Combat Aquatics’s reasonable control; or (D) in no event shall Combat Aquatics’s aggregate liability under this T&C exceed Fifty ($50) dollars.
Combat Aquatics, LLC shall use reasonable efforts consistent with prevailing industry standards to maintain the Site in a manner which minimizes errors and interruptions in the Site and shall perform the Site in a professional and workmanlike manner. The Site may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Combat Aquatics, LLC or by third-party providers, or because of other causes beyond Combat Aquatics, LLC’s reasonable control, but Combat Aquatics, LLC shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Combat Aquatics does not warrant that the site will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the site. Except as expressly set forth in this section, the Site is provided “As Is” and Combat Aquatics disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
The failure of Combat Aquatics, LLC to perform its respective obligations under this T&C shall not be deemed a breach of this T&C to the extent that such performance is delayed or prevented in whole or in part by acts of God, fire, floods, storms, explosions, accidents, pandemics, epidemics, war, civil disorder, national emergency or other labor difficulties (including a strike, lockout or other work stoppage), or any law, rule, regulation, order or other action adopted or taken by any federal, state or local government authority or any other cause not reasonably within such party’s control, whether or not specifically mentioned herein, such an event being known as an event of “Force Majeure”. Pandemic means an epidemic disease that is occurring throughout a very wide area, usually several countries or continents, and usually affecting a large proportion of the population.
Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in these T&C may not apply to you.
Governing Law. The T&C and the relationship between You and Us shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award, you agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Texas and waive any objection as to venue or inconvenient forum. The failure of us to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision. If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the T&C must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Any dispute or claim between you and us arising out of or relating to this T&C shall be resolved by binding arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Collin County, Texas and shall be conducted in English. Questions of arbitrability shall be decided by the arbitrator. The prevailing party shall be entitled to an award of reasonable attorney’s fees and costs of suit. The arbitrator’s decision shall follow the plain meaning of the relevant documents and the decision shall be in writing including the legal reasoning and factual basis for the decision. Judgment upon the arbitrator’s decision may be entered in any court of competent jurisdiction following judicial review, if any, as provided for by law. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this T&C provides; or (ii) award punitive or exemplary damages. All claims shall be arbitrated individually, and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. YOU ACKNOWLEDGE THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND OTHER PROCEDURES INHERENT IN ORDINARY CIVIL LITIGATION. MANDATORY BINDING ARBITRATION FOR NON-CALIFORNIA RESIDENTS.
If any provision of this T&C is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this T&C will otherwise remain in full force and effect and enforceable. No right or interest in this T&C will be assigned by either Party without the prior written permission of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing or anything to the contrary in this T&C, either Party may, without the other Party’s written consent, assign this T&C in its entirety to any entity that acquires all or substantially all of such Party’s assets (other than in a bankruptcy proceeding) or a majority of such Party’s outstanding equity securities, or is the surviving entity in any merger; provided that the assignee agrees to be bound by all of the terms and conditions of this T&C. Any attempted assignment in contravention of this provision will be void and ineffective. The assigning Party shall remain obligated for the performance of this T&C by any affiliate. This T&C is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral T&Cs, communications and other understandings relating to the subject matter of this T&C, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this T&C and Customer does not have any authority of any kind to bind us in any respect whatsoever. All notices under this T&C will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.