Last Updated: November 7, 2017
In addition to these Terms, we may ask you to accept additional terms that apply to specific features, promotions, products or services (“Additional Terms”). For instance, your purchase and use of Backcountry gift cards is subject to our gift card terms and conditions. To the extent any Additional Terms conflict with these Terms, the Additional Terms govern with respect to your access to or use of the applicable feature, product or service.
You must be at least 13 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to these Terms and to be fully responsible for the acts or omissions of such user.
2 User Accounts
You will need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You must maintain the security of your account and account credentials and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to access the Services through your account, you are responsible for the activities of those users. We reserve the right to reclaim screen names on behalf of businesses or individuals that hold legal claim, including trademark rights, in those screen names.
3 Terms of Sale
- Availability and Pricing. All products offered for sale are subject to availability and we reserve the right to impose quantity limits on any order or reject all or any part of an order without prior notice. Prices for products are subject to change at any time, but changes will not affect any order for products you have already placed. Purchases are also subject to our price matching policy and sale items policy.
- Taxes. You are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase of products or services through our Services. We will collect applicable Taxes if we determine we have a duty to collect Taxes. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. The actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. We are not required to, and do not, collect Taxes in all states. You may have a duty to directly report and pay Taxes if we do not collect such Taxes. Please refer to our tax policy for important sales and use tax information regarding tax you may owe directly on items shipped to Kentucky, Oklahoma, Vermont, and other jurisdictions.
- Payment. Only valid payment methods acceptable to us may be used to complete a purchase via the Services. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your order (including any applicable taxes and shipping and handling charges). If any of the products in your order are unavailable, we will only charge the prices, Taxes and other applicable charges associated with the products that are included in the shipment.
- Shipping; Risk of Loss. You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the changes applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise in writing via the Services, risk of loss or damage to a product passes to you upon delivery of the product to our designated carrier.
- Returns. Please see our Return Policy for information about returning products purchased via our Services.
- Errors. In the event of an error, we reserve the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.
- Limited Warranty for Backcountry Products. Certain of the products sold via our Services are manufactured by or for Backcountry (“Backcountry Products”) and may be subject to a limited warranty provided by Backcountry. If your Backcountry Product is subject to a limited warranty, the limited warranty for your Backcountry Product outlines your exclusive remedies and the procedures to make a warranty claim. If your Backcountry Product is sold without a limited warranty, then it is sold “as is” and “with all faults.” That means that you bear the entire risk as to the quality and performance of the Backcountry product, and if the Backcountry Product has a defect, then you assume the entire cost of any necessary repair or replacement.
- Remedies for Other Products. Many of the products sold via the Services are manufactured by other companies. The manufacturer may offer its own warranty, but unless otherwise stated on the product page, Backcountry does not offer a warranty on those products. That means they are sold by Backcountry “as is” and “with all faults.” If the manufacturer offers a limited warranty for the product, it can usually be found on the manufacturer’s website or with the product packaging. For any product sold via the Services other than a Backcountry Product, you agree that your remedy is solely with the product manufacturer and not Backcountry.
4 Limited License
Our Services, including the product descriptions, text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein, are owned by or licensed to Backcountry and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Backcountry and our licensors reserve all rights in and to our Services. Backcountry grants you a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to use our Services for your own personal use; however such license does not include the right to (a) sell or resell any aspect of our Services to any third party or otherwise use our Services for any commercial purpose; (b) copy, reproduce, distribute, publicly perform or publicly display any aspect of the Services, except as expressly permitted by us or our licensors; (c) modify the Services, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services; or (d) use our Services other than for their intended purposes. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
5 User Content
Our Services may allow you and other users to create, post, store or share content, including messages, text, product reviews, photos, videos, audio and other materials (collectively, "User Content"). Except for the license you grant below, as between you and Backcountry, you retain all rights in and to your User Content. You grant Backcountry a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, create derivative works from, distribute, publicly perform and publicly display your User Content, including any name, username or likeness provided in connection with your User Content, via the Services and through all media formats and channels now known or later developed without compensation to you. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason. You represent and warrant that you have all necessary rights to grant us the rights granted under this Section.
6 Prohibited Conduct
You agree that you will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:
- Engage in any harassing, threatening, intimidating, spamming, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user;
- Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
- Develop or use any applications that interact with our Services without our prior written consent;
- Use any data mining, robots or other data gathering or extraction methods in connection with the Services;
- Bypass or ignore instructions contained in any robots.txt file we provide that controls automated access to portions of our Services; or
- Use our Services in any illegal, fraudulent or other unauthorized manner, or engage in, encourage or promote any activity that violates these Terms.
7 Prohibited Content
You may not create, post, store or share any User Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, misleading or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any applicable law;
- Infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Fails to clearly and prominently disclose any material connections you may have with us or third parties (for instance, in connection with a product review);
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without that third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Backcountry or others to any harm or liability of any type.
You may create a text hyperlink to our Services for noncommercial purposes, provided such link does not portray Backcountry or any of its products or services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited permission may be revoked at any time. You will not use the Backcountry logo or other proprietary graphic of Backcountry to link to our Services without our express written permission.
9 Third-Party Content
Backcountry may provide third-party content on our Services, including User Content, and may provide links to web pages and content of third parties (collectively, the “Third-Party Content”). Backcountry does not endorse or adopt any Third-Party Content and can make no guarantee as to its accuracy or completeness. Backcountry does not create, update, or monitor Third-Party Content and is not responsible for any Third-Party Content. You are responsible for deciding if you want to access or use Third-Party Content or applications that link from our Services. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through our Services are solely between you and such advertiser. Access and use of such Third-Party Content, including the materials, products or services on or available through any third party sites, is solely at your own risk.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Backcountry or our products or Services (collectively, “Feedback”), is non-confidential and Backcountry will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
11 Copyright Complaints
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Backcountry’s Designated Agent as follows:
|Designated Agent:|| |
Assistant General Counsel
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Backcountry for certain costs and damages.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Backcountry, our affiliates, and each of our and their respective officers, members, managers, directors, agents, partners and employees (individually and collectively, the “Backcountry Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services, including your conduct in connection with our Services; (b) your User Content or Feedback; (c) your violation of these Terms; or (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights). You agree to promptly notify Backcountry Parties of any third-party Claims, cooperate with Backcountry Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Backcountry Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and any of the Backcountry Parties.
We do not control, endorse or take responsibility for any Third-Party Content available via our Services. Your use of our Services is at your sole risk. Except as otherwise provided in these Terms (including any limited warranty applicable to a Backcountry Product), our Services and the products purchased via our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, except that if Backcountry provides an express limited warranty for a Backcountry Product, the implied warranties are limited to the term of that limited warranty. In addition, Backcountry does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Backcountry attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. Except as otherwise provided in these Terms, you assume the entire risk as to the quality and performance of the Services and the products you purchase via the Services.
14 Limitation of Liability
- The Backcountry Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental or special damages arising out of or in any way related to these Terms or our Services (including the products purchased via our Services), even if Backcountry or the other Backcountry Parties have been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
- The total liability of the Backcountry Parties for any claim arising out of or relating to any product purchased via the Services will not exceed the greater of $100 or the purchase price of that product. For all other claims arising out of or relating to these Terms or our Services, the total liability of Backcountry Parties is limited to $100.
- The limitations set forth in this section will not limit or exclude liability for personal injury or property damage caused by a product you purchased via the Services or the gross negligence, fraud, or intentional, willful, or reckless misconduct of the Backcountry Parties or for any other matters in which liability cannot be excluded or limited under applicable law.
To the fullest extent permitted by applicable law, you release the Backcountry Parties from responsibility, liability, claims, demands, or damages of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
16 Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Backcountry and limits the manner in which you can seek relief from us.
- Except as specified in Section 16(f) below, you and Backcountry waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. The arbitration will be held in the county in which you reside, provided that if the claim is for $25,000 or less, either you or Backcountry may choose to conduct the arbitration through a telephonic hearing. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
- You and Backcountry agree that any dispute arising out of or related to these Terms or our Services is personal to you and Backcountry and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
- To the maximum extent permitted by applicable law, you and Backcountry agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"). As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Backcountry agree that for any arbitration you initiate, the party filing the claim will pay the filing fee and the parties will split the remaining JAMS fees and costs. You and Backcountry agree that the state or federal courts of the State of Utah and the United States sitting in Summit County, Utah have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and BACKCOUNTRY will not have the right to assert the claim.
- You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
- This Section 16 will not apply to (i) small claims disputes in which you or Backcountry may seek to bring an individual action in small claims court located in the county of your billing address or (ii) disputes in which you or Backcountry seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property.
17 Governing Law and Venue
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of Utah, without regard to conflict of law rules or principles (whether of Utah or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or small claims court will be resolved in the state or federal courts of Utah and the United States, respectively, sitting in Summit County, Utah.
18 Export Compliance
All or part of our Services or the products purchased via our Services may be subject to U.S. export control, customs or economic sanctions laws (“Export Controls”). You agree to comply with all Export Controls as they relate to your receipt and use of our Services and the products purchased via our Services. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
19 Government Users
This section applies only if you are acting on or behalf of an agency of the U.S. government. If acquired by any agency of the U.S. government, such agency acknowledges that: (a) any software obtained in connection with the Services (such as our mobile apps) constitute “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable; and (b) such agency's rights are limited to those specifically granted under these Terms.
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services or to discontinue all or a part of the Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. These Terms and any applicable Additional Terms constitute the entire agreement between you and Backcountry relating to your access to and use of our Services. The failure of Backcountry to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.
22 Changes to Terms
We may make changes to these Terms from time to time. If we make changes, we will provide notice of such changes, such as by sending an email notification, providing notice through our Services, or posting the amended Terms to our Services and updating the “Last Updated” date above. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
If you have any questions or concerns regarding the Services or these Terms, please contact Backcountry at: Backcountry.com, LLC, Attn: Legal Department, 1678 West Redstone Center Drive, Park City, UT 84098 or email@example.com.
Additional Terms for iOS Users
The following terms apply if you are accessing or using one of our mobile applications (collectively, “App”) on an Apple Inc. (“Apple”) branded mobile device.
- Acknowledgement. The Terms are concluded between Backcountry and you only, and not with Apple, and, as between Apple and us, we are solely responsible for the App and the content thereof.
- Scope of License. The license granted to you for the App under the Terms is limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Apple Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via “Family Sharing” or volume purchasing.
- Maintenance. Backcountry is not obligated to provide any support or maintenance services for the App, provided that we are solely responsible for such services to the extent required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- Warranty. To the extent not effectively disclaimed under Section 13 of the Terms, we are solely responsible for any warranties, whether express or implied by law. In the event of any failure of the App to conform to any applicable warranty not effectively disclaimed under Section 13, you may notify Apple, and Apple will refund the purchase price for the App (if any); and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
- Liability. Subject to Section 14 of the Terms, we, and not Apple, are responsible for addressing any claims of yours or any third party relating to the App or your possession or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation.
- IP Claims. Subject to Section 14 of the Terms, in the event of any third-party claim that the App or your possession or use of that App infringes any third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Third Party Beneficiaries. Apple and its subsidiaries are third-party beneficiaries of these Terms, and will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.