GENERAL TERMS AND CONDITIONS OF USE OF THE WEBSITE
Version applicable from April 2021
Article 1: Purpose and scope
These general terms and conditions of use (hereinafter referred to as the “General Terms and Conditions of Use”) apply to the website www.aqualung.com and its mobile version (the “Website”) that expressly adopt and display or link to these General Terms and Conditions of Use, as may be revised from time to time, and that are owned, operated or controlled by Aqualung America, Inc., with registered office at 2340 Cousteau Ct. Vista, CA 92081 (United States) registered under the laws of Delaware (hereinafter referred to as “AQUALUNG AMERICA”. By accessing and using the Website, the user (“User”) acknowledges and agrees to accept and be bound by these General Terms and Conditions of Use.
Article 2: Content
All Website content, including, without limitation, all text, graphics, audio, video, music, icons, images, hyperlinks, advertising copy, displays, products, HTML code and scripts (collectively, the “Website Content”), and the collection, arrangement and assembly of the Website Content, is the property of AQUALUNG AMERICA and its sponsors, distributors, or licensors, and is protected by copyright law and other U.S. and international laws and treaties. The User is granted no right, title or interest in or to the Website Content other than the limited license expressly set forth in these Terms. The User may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into a website or in any way exploit the Website Content, or any portion thereof, without the express written permission of AQUALUNG AMERICA.
Article 3: Use of Website Content
The Website, including all Website Content, is provided as a resource for Users to learn more about AQUALUNG AMERICA and its products and services. Subject to these General Terms and Conditions of Use, the User is hereby granted a non-exclusive, non-transferable, limited, revocable license to access and use the Website and the Website Content for the User’s own non-commercial purposes. All rights not expressly granted are reserved by AQUALUNG AMERICA and its licensors. This limited license may be revoked at any time for any reason or no reason.
Article 4: Intellectual Property
All rights regarding any trademarks, trade names, service marks, logos and/or trade dress (collectively, “Marks”) contained in, or used in connection with, the Website are expressly reserved by AQUALUNG AMERICA and its licensors. The Marks are the ownership of AQUALUNG AMERICA. No license with respect to the use of the Marks is granted to the User under these General Terms and Conditions of Use or by virtue of User’s use of the Website. The Marks may not be copied, imitated or used, in whole or in part, without the prior written consent of AQUALUNG AMERICA or the applicable rights holder.
Article 5: User Information
Article 6: Acceptable Use
The User’s permitted use of the Website and Website Content is limited to the standard functionality of the Website. In no event may the Website be used in a manner that (i) is unlawful, fraudulent or deceptive, (ii) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any third party (including, without limitation, the rights of publicity or other proprietary rights), (iii) uses technology or other means not authorized by AQUALUNG AMERICA to access Website Content, (iv) attempts to introduce viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, (v) attempts to gain unauthorized access to AQUALUNG AMERICA’s systems or user accounts, (vi) encourages conduct that would constitute a criminal offense or that gives rise to civil liability, (vii) attempts to damage, disable or overburden AQUALUNG AMERICA’s servers or networks, or (viii) fails to comply with applicable third party terms. The User must comply with all applicable third party General Terms and Conditions of Use (e.g., wireless carrier terms of service) at all times while using the Website. AQUALUNG AMERICA reserves the right, in its sole discretion, to terminate the license granted to the User hereunder and/or bring legal action against the User if the User engages in, or AQUALUNG AMERICA reasonably believes the User has engaged in or is engaging in, use that violates these Terms. AQUALUNG AMERICA’s failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
Article 7: Eligibility; Jurisdiction
The User represents and warrants that (i) the User is over the age of legal majority according to the laws of his/her country or holder of parental authorization and is fully competent and able to enter into these General Terms and Conditions of Use and to abide by the terms hereof; (ii) the User is 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 support” country, and (iii) the User is not included on any U.S. Government list of prohibited or restricted parties. The Website is not intended for children under the age of 13. AQUALUNG AMERICA provides the Website for use in the United States of America. AQUALUNG AMERICA does not represent the Website is available or appropriate for use in other jurisdictions. Any access to or use of the Website from other jurisdictions is at the User’s sole risk and the User is responsible for complying with all applicable local laws.
Article 8: Disclaimers
AQUALUNG AMERICA AND ITS LICENSORS do not warrant or guarantee the accuracy, RELIABILITY or completeness of the Website Content or represent that the Website or the Website Content is error-free or capable of operating on an uninterrupted basis. THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Article 9: Limitation of Liability
use of the Website is at THE USER’S own risk. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, AQUALUNG AMERICA AND ITS LICENSORS shall NOT be LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO: (i) use or misuse of the WEBSITE OR the WEBSITE Content; (ii) inability to access or use the WEBSITE or the WEBSITE Content; (iii) any loss or corruption of data or information submitted VIA the WEBSITE; (iv) any communications or services provided by, or requested from, AQUALUNG AMERICA via the Website; or (V) ANY PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE RESULTING FROM ACCESS TO OR USE OF THE WEBSITE. The foregoing limitations of liability shall apply whether the claim is based on warranty, contract, tort, or any other legal theory, and whether or not AQUALUNG AMERICA is advised of the possibility of such damages.
Article 10: Indemnity
Upon request by AQUALUNG AMERICA, the User agrees to indemnify, defend and hold harmless AQUALUNG AMERICA and its employees, contractors, officers, directors, and licensors from and against all claims, suits, demands, damages, liabilities, loss, cost, and expense (including reasonable attorneys’ fees) that arise from: (i) the User’s use or misuse of the Website; (ii) the User’s violation of these General Terms and Conditions of Use; (iii) the User’s violation of any third party right, including without limitation any copyright, property or privacy right; or (iv) any claim that the User Content resulted in damage to a third party. AQUALUNG AMERICA reserves the right, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate with AQUALUNG AMERICA in asserting any available defenses.
Article 11: Changes to Website
At any time and without notice to the User, AQUALUNG AMERICA may change or modify the Website, or any features or functions thereof, or may suspend or discontinue the Website, or stop supporting the Website, or any aspect thereof. Any such termination, change, suspension or discontinuance shall be without liability to the User.
Article 12: Changes to Terms; Updates
AQUALUNG AMERICA reserves the right to change these General Terms and Conditions of Use at any time, and in its sole discretion, by changing these General Terms and Conditions of Use within the Website. The User’s continued use of the Website after any such changes to these General Terms and Conditions of Use are made available through the Website will constitute the User’s acceptance of those changes. These General Terms and Conditions of Use shall govern any updates to, or supplements or replacements for, the Website unless separate terms are provided in conjunction with such updates, supplements or replacements - in which case such separate terms will apply.
Article 13: Governing Law
These General Terms and Conditions of Use are governed by the laws of the State of Ohio and applicable federal laws of the United States of America, without giving effect to conflict of laws principles. The User irrevocably consents to the exclusive jurisdiction of the federal and state courts located in Columbus, Ohio for purposes of any legal action arising out of or related to these General Terms and Conditions of Use or use of the Website.
Article 14: Agreement to Arbitrate
Any civil action, claim, dispute or proceeding arising out of or relating to access to or use of the Website will be resolved exclusively through final and binding arbitration, before a single arbitrator, rather than in court. The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve any dispute arising out of access to or use of the Website, and to arbitrate any part of these Terms, including any claim that all or any part of this section or these General Terms and Conditions of Use is void or voidable.
The arbitration will be conducted by the American Arbitration Association (the “AAA”) exclusively in Franklin County, Ohio under the AAA’s rules and procedures, as modified by this section. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org.
You and AQUALUNG AMERICA will select the arbitrator, and if you and AQUALUNG AMERICA are unable to reach agreement on selection of the arbitrator within 30 days after the notice of arbitration is served, then the AAA will select the arbitrator. Arbitration will not commence until the party requesting arbitration has deposited U.S. $1,000 with the arbitrator for the arbitrator’s fees and costs. The party requesting arbitration will advance such sums as are required from time to time by the arbitrator to pay the arbitrator’s fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.
The arbitrator will decide the substance of all claims exclusively in accordance with the laws of the State of Ohio, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving others Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. Judgment upon any award rendered by the arbitrator is final, binding and conclusive upon the Customer and AQUALUNG AMERICA and the Customer’s and AQUALUNG AMERICA’s respective administrators, executors, legal representatives, successors and assigns, and may only be entered in the state or federal courts of record for Franklin County, Ohio.
Article 15: Legal Notice For New Jersey Residents
Under the New Jersey Truth-in-Consumer Contract, Warranty and Notice ACT (“TCCWNA”), N.J.S.A. 56:12-14 et seq., consumers may not be offered any written contract which includes any provision that violates any clearly established legal right of a consumer, or responsibility of a seller, as established by state or federal law. In addition, under the TCCWNA, no consumer contract may state that any of its provisions are or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable in New Jersey. Therefore, the following provisions of these General Terms and Conditions of Use shall not be applicable to New Jersey residents: (1) the provisions concerning limiting AQUALUNG AMERICA’s liability for any loss or damage is not applicable to New Jersey residents to the extent AQUALUNG AMERICA was negligent or has breached its obligation; (2) the provisions concerning the exclusion or limitation of certain damages is not applicable to New Jersey residents with respect to punitive damages, loss of data, and loss of or damage to property; and (3) the provisions concerning the indemnification by you is not applicable to New Jersey residents unless you were negligent or have breached these General Terms and Conditions of Use.