Welcome to the Cavela Marketplace. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services, Platform (as defined herein) and applications (collectively, the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at help@cavela.com.
These Terms of Service (the “Terms”) are a binding contract between you or, if you are entering into these Terms on behalf of your organization, such organization (“you” or “User”) and Cavela, Inc. (“Cavela,” “we” and “us”). You represent and warrant that you are an individual of legal age to form a binding contract. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
Note that any one User may use the Services variously as a Buyer or Supplier (as such terms are defined herein). Users may also use the Services without being required to enter into a sale transaction (an “Order”) as a Buyer or Supplier. When we use the word “you” or “User” in these Terms, it refers to any User of the Services, regardless of whether such User is using the Services as a Buyer or Supplier (or neither), while if we use one of those specific terms, it only applies to that category of User. Your use of the Services in any way means that you agree to all of these Terms, and these Terms (as updated or otherwise modified by us as permitted herein) will remain in effect for as long as you use the Services. Your use of or participation in the Services (including placing Orders through the Platform) may also be subject to additional policies, rules and/or conditions (“Additional Terms”), between you and Cavela or between you and another User. You understand and agree that by using or participating in any such Services or activities, you agree to also comply with the associated Additional Terms. Nothing in the Additional Terms will be deemed to supersede or modify any of these Terms.
Please read these Terms carefully. They cover important information about Services provided to you and the fees that apply to your use of the Services. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.What Does Cavela Do?
We maintain a platform (the “Platform”) that enables Users that wish to manufacture certain goods (such Users, “Buyers”), to locate certain Users that can manufacture those goods on the Buyer’s behalf (such Users, “Suppliers”). “Goods” means the items designed by or on behalf of Buyer, to be manufactured by Suppliers, including any Samples (as defined below) of such items, as ordered by a Buyer. Subject to the terms and conditions of this Agreement, Cavela, its affiliates, contractors and/or agents will use commercially reasonable efforts to (a) provide Buyers access to and use of the Platform to enable Buyers to match with a Supplier; (b) in connection with Orders made through the Platform, coordinate Order processing on your behalf; and (c) provide other services that may be mutually agreed by the parties. The Services may be altered or modified from time to time in Cavela’s sole discretion. You acknowledge and agree that Cavela does not directly offer Goods for sale via the Platform. You further hereby acknowledge that Cavela does not supervise, direct, control or monitor Goods offered through our Services, and expressly disclaims any responsibility and liability for such Goods, including but not limited to any warranty or condition of quality or fitness for a particular purpose, or compliance with any law, regulation, or code.
2.What are the basics of using Cavela?
You may be required to sign up for an account, select a password and user name (“Cavela User ID”), and provide us with certain information or data as we may request, such as your contact information, payment information and information about your Goods. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Cavela User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You will not share your Cavela User ID, account or password with anyone, and you must protect the security of your Cavela User ID, account, password and any other access tools or credentials. You are responsible for any activity associated with your Cavela User ID and account.
In certain circumstances, the functionality of the Services may permit a User to obfuscate its identity, location, or other details as between it and other Users, but this functionality does not limit your obligation to provide accurate information to Cavela. If Cavela does not provide you with contact details regarding another User, you will not attempt to learn the identity of such User or contact such User without prior consent of Cavela.
You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services (for example, laws regarding intellectual property). If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law. You acknowledge and agree that we have the right to remove any content, including User Content (as defined below) from the Services at any time, for any reason (including, but not limited to, upon receipt of threats, claims or allegations relating to such content). We are also free to suspend access to your use of the Services or your account, for any reason, in our reasonable discretion
Users may be subject to a vetting process before they are permitted to register for a Cavela User ID, and during their use of the Services, including, but not limited to, a verification of identity, using third-party services as appropriate. You hereby give consent to us to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
3.How to Orders between Buyers and Suppliers Work?
To find a Supplier to manufacture Goods, Buyers are required to submit certain information, as requested by Cavela, regarding such Goods. If a Buyer does not provide the information requested, we may not be able to provide such Buyer with the Services. Once a Buyer submits the requested information, we will collect quotes (each, a “Quote”) from Suppliers that have indicated they are willing and able to manufacture such Buyer’s Goods. That Buyer has the option to order a sample (“Sample(s)”) of the Goods offered to be manufactured by the applicable Suppliers, based on the Quotes provided. If the Buyer is satisfied with a particular Sample, such Buyer has the option to place an Order with the applicable Supplier to manufacture the Goods.
In order to be eligible to manufacture Goods, Suppliers are required to abide by international law. Suppliers hereby agree to manufacture the Goods in accordance with the specifications as provided by Buyers, and provide any information to Cavela as reasonably requested in relation to a given Order. Suppliers are considered the suppliers of record for all Goods he, she, or it supplies to Buyers under these Terms and any Order.
Before purchasing any Goods through the Platform, Buyers are responsible for evaluating the information provided by Suppliers with respect to the Goods and making their own determinations that the Goods are suitable for the Buyers’ intended use.Cavela can’t and won’t be responsible for ensuring that information provided by a User is accurate, complete or up-to-date. We don’t control the actions of any User, and Users are not our agents.
Quotes and Orders
Users wishing to enter into an Order will do so via the Platform, as facilitated by Cavela. For clarity, an Order may take the form of a digital order describing the Goods and the other terms of the applicable Order, which is agreed to by both Buyer and Supplier. Certain listings may be contingent on Buyer and Supplier agreeing to particular terms regarding the timing, delivery and/or payment for the Materials (such listings, “Contingent Listings”), in which case an Order for such Contingent Listings will only become binding if and when the Buyer and Supplier have mutually agreed to such timing, delivery and/or payment terms, as evidenced in an executed Order. Unless expressly stated otherwise in an Order, Cavela is not a party to any Order and cannot guarantee Suppliers’ performance under an applicable Order, including ensuring that Goods are actually shipped or delivered, or that Goods conform to any specifications agreed to by Buyer and Supplier. Buyers’ and Suppliers’ sole recourse related to any Order is against the counterparty set forth on the applicable Order. CAVELA WILL NOT HAVE ANY LIABILITY TO ANY USER FOR ANY OTHER USER’S BREACH OF ITS OBLIGATIONS UNDER AN ORDER.
4.Can Users enter into Outside Agreements (as defined below)?
Users must not enter into separate agreements with each other outside of Cavela relating to the purchase and sale of Goods (“Outside Agreements”), in an attempt to circumvent these Terms or otherwise, except that, in certain circumstances, a Buyer and Supplier may agree to additional terms applicable to an Order, in which case such additional terms will apply only to such Order. Notwithstanding anything to the contrary, a Buyer and Supplier may not agree to any Order or Outside Agreement that creates any obligation for Cavela. Nothing in any Outside Agreement or Order shall amend these Terms[, nor require Cavela to disclose contact details or other identifying information about any User to any other User]. If you do enter into any Outside Agreement that violates any of the restrictions of this Section, we may terminate your Cavela account and/or take any other action Cavela deems appropriate to remedy such breach, including but not limited to charging you a penalty fee, equal to three (3) times the total amount due under any Order which was circumvented by your entry into an Outside Agreement. You acknowledge that Cavela is not a party to and isn’t responsible for enforcing any Outside Agreement.
5.What about the Content (as defined below) that I upload to the Services?
As a User, you may be required to provide Cavela with certain information or materials in connection with your use of the Platform (which, in certain circumstances, may include your name(s), logo(s), or trademark(s), or design(s)) (collectively, your “User Content”). You hereby grant Cavela a non-exclusive, royalty-free, worldwide right and license to use, display, modify, and exercise all rights in such User Content, and make the User Content available to other Users, in connection with making the Platform and Services available during the term hereof. [In certain circumstances, Cavela may offer a functionality that permits a User to obfuscate certain identifying details about itself, or Cavela may require a User to obfuscate certain identifying details about itself (collectively, “Restricted Information”); in such cases, we will not display such Restricted Information to other Users, to the extent described by us on the Services at the time you take advantage of such feature. Notwithstanding the foregoing, in the event of a dispute between any Buyer and a Supplier, Cavela reserves the right to share Restricted Information between the Users involved in a dispute, to the extent necessary (in Cavela’s sole discretion) to permit such Users to resolve such dispute.]
You may provide certain User Content which may be considered “User Confidential Information”. If you are a Buyer, your User Confidential Information includes your name, shipping address, contact information, and the [design of your Goods]. If you are a Supplier, your User Confidential Information includes your name, address, contact information, and pricing related to Goods you are willing to manufacture. Cavela will (i) use the User Confidential Information to provide the Services; (ii) not disclose User Confidential Information to any, third parties, except to employees, agents, or third-party service providers who need to know such information in connection with the provision of Services to you and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (iii) protect the User Confidential Information with the same degree of care with which Cavela protects its own confidential information, but in no event with less than a reasonable standard of care. We will promptly notify you in the event we become aware of any breach of confidentiality with respect to your User Confidential Information.
The obligations set forth above with respect to User Confidential Information will not apply to information that: (i) is or becomes publicly known through no fault of Cavela; (ii) is in possession of Cavela without restriction before the date of receipt from you; (iii) is disclosed to Cavela without restriction by a third party; or (iv) is independently developed by Cavela without reference to or reliance upon your User Confidential Information. Cavela hereby reserves the right to disclose any information we collect about you and/or you provide to us, including information regarding any Order or User Confidential Information, to the extent necessary to comply with applicable law or court order, or as we deem reasonably necessary to protect anyone’s safety or security or to resolve a dispute or enforce anyone’s rights (including Cavela’s).
Notwithstanding the foregoing, you hereby agree that we can and will disclose certain User Confidential Information to other Users only as required to provide the Services to you (subject to the terms above regarding the Restricted Information). Cavela cannot control the actions of any User with respect to any User Confidential Information we disclose to them, and will not be responsible for any use of User Confidential Information by any other User that violates the confidentiality provisions as set forth herein.
Cavela may also aggregate and anonymize any information it collects from or about any User in connection with the Services and Platform (such that it does not identify such User or any individual person in such User’s organization) (“Aggregated Data”), and use and disclose such Aggregated Data freely for its business purposes.
6.Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Cavela), including in connection with any User Content;
(b) Violates any law, rule or regulation, including, without limitation, the laws, rules and regulations governing the sale, shipping, storage, and use of Goods;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable, including providing Content that is inaccurate, incomplete, or out-of-date;
(d) Jeopardizes the security of your Cavela User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other User;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content; or
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
In addition, while using the Services, you agree that you will not:
(a) Refuse to pay for Goods purchased by you in connection with an Order consummated through the Services;
(b) Circumvent or manipulate Cavela’s fee structure, the billing process, or fees owed to Cavela;
(c) Use the Services or data collected from our Services for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
(d) Use the Services for or in connection with money laundering, terrorist financing, or other illicit financial activity, or in any way in connection with the violation of any law or regulation that applies to you or to Cavela;
(e) Use the Services, directly or indirectly, for, on behalf of, or for the benefit of, (i) any natural or legal person that is the subject of sanctions; (ii) any natural or legal person located in, ordinarily resident in, or organized under the laws of, any embargoed jurisdiction; or (iii) any legal person owned or controlled, directly or indirectly, by any natural or legal person located in, ordinarily resident in, or organized under the laws of, any embargoed jurisdiction;
(f) Use the Services to carry out any financial activities subject to registration or licensing, including but not limited to minting, offering, selling, or buying securities, options, or debt instruments; or
(g) Use the Services to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
7.What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, information about Goods and so forth, including User Content (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Cavela) rights.
Subject to these Terms, we grant each User of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services, including as reasonably necessary to consummate Orders of Goods. Use, reproduction, modification, distribution or storage of any Content other than as permitted herein is expressly prohibited without prior written permission from us. You understand that Cavela owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
If you send or transmit any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback in any manner without any royalty obligation or other duty to you.
8.Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any other Users or Suppliers with whom you interact while using the Services and are not responsible for which Users or Suppliers gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Cavela. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Cavela is not responsible for such risks.
Cavela has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Cavela will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
If there is a dispute between participants on this site or Services, or between a User and any third party, you agree that Cavela is under no obligation to become involved. You may contact Cavela at help@cavela.com at any time to request assistance with resolving any disputes regarding an Order. However, Cavela is not obligated to resolve such disputes, and cannot guarantee any particular result, but if the other User’s or Supplier’s contact information is Restricted Information, Cavela may disclose such contact information to facilitate the resolution of such dispute. In the event that you have a dispute with one or more other Users, you release Cavela, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
9.Will Cavela ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to part or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice. Note that this may involve the de-listing of certain Goods as available for purchase, including if Cavela suspects the User Content describing such Goods is inaccurate.
10.How do Fees and Payments Work?
At the time you accept a Quote to order a sample of your Materials, you will pay a fee as indicated in the Quote for such sample (the “Sample Fee”). The Sample Fee is not refundable, and your samples cannot be returned or exchanged once ordered. If you have any questions about a sample or the Sample Fee, please contact us at help@cavela.com.
For purchases of Goods made through the Platform, Cavela will charge the price of the Goods as provided in the applicable Quote (the “Goods Price”), [as well as any applicable sales tax (the “Goods Sales Tax”)], and shipping and handling fees (the “Shipping Fee”), which may or may not be listed as a separate line item in the Goods Price (the Goods Price, Goods Sales Tax and Shipping Fee, the “Total Price”). To the extent not already addressed by the requirement to pay the Goods Sales Tax described above, Users are required to pay the taxes lawfully levied upon it by any governmental authority.
Seventy (70) percent of the Total Price is due and payable to Cavela at the time you place your Order (the “First Payment”), and the remaining thirty (30) percent is due and payable to Cavela at the time your Goods are ready for shipment to you by your Supplier.
All Orders are between the applicable Buyer and Supplier; for that reason, in the event you seek a refund related to an Order or have any questions. In no event will we be obligated to refund the Cavela Fee [or the Goods Sales Tax] with respect to any Sale, even if Supplier refunds to User the underlying Goods Price applicable to such Sale.
Payments received from Buyers for an applicable Order will be processed by Cavela on behalf of the Supplier, and the Goods Price will be either, as mutually agreed by Cavela and Supplier prior to the Sale being consummated, (a) paid by Cavela to Supplier within thirty (30) days after Cavela’s receipt of Supplier’s invoice for the Goods Price, or (b) credited to the Supplier’s Cavela account. Supplier appoints Cavela as its limited payment collection agent solely for the purpose of accepting funds from Buyers on behalf of Supplier. Supplier understands that Cavela’s obligation to pay Supplier is subject to and conditional upon successful receipt of the associated payments from Buyer. We guarantee payments to Suppliers only for such amounts that have been successfully received by us from Buyer. In accepting appointment as the limited payment collection agent of Supplier, we assume no liability for any acts or omissions of the Supplier. Unless otherwise set forth in the applicable Order, payments from Buyers are due and payable immediately upon entering into an Order, including the applicable [Cavela Fee and any Goods Sales Tax].
Cavela reserves the right to apply late charges, and/or cancel any Sale, if payment is not made in full as required by the applicable Order.
What if I want to stop using the Services?
You’re free to do that at any time by contacting us at help@cavela.com. Please refer to the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Cavela is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including if you breach any provision of these Terms, engage in fraudulent or misleading activity or are acting in a manner inconsistent with the letter or spirit of these Terms. Cavela has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content (including User Content) associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at help@cavela.com; we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration provision.
11.What else do I need to know?
Warranty Disclaimer. Cavela and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Cavela and all such parties together, the “Cavela Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content (including any information regarding Goods) contained in or accessed through the Services and any Goods purchased or sold through the Services, or any Supplier’s performance in connection therewith. The Cavela Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services (including your participation in any Order). The Cavela Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services, including any Goods. THE SERVICES AND CONTENT ARE PROVIDED BY CAVELA (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE GOODS (INCLUDING ANY CHEMICALS) MAY BE HIGHLY REGULATED BY LOCAL, STATE, AND FEDERAL LAWS; COMPLIANCE WITH SUCH LAWS IS YOUR SOLE RESPONSIBILITY, INCLUDING, BUT NOT LIMITED TO, PROPER PREPARATION AND MAINTENANCE OF ALL REQUIRED DOCUMENTATION. WE ARE NOT AND CANNOT BE RESPONSIBLE FOR ENSURING COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS, AND YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ANY FAILURE TO SO COMPLY.
Modification of Terms. We are constantly trying to improve our Services, so these Terms may need to change along with our Services or as otherwise determined by us in our sole discretion. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at https://www.cavela.com/, send you an email, and/or seek to notify you by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. For clarity, no change to these Terms shall apply with respect to (i) Orders that are in place at the time of such change, or (ii) Orders that have been executed at the time of such change.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE CAVELA PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE THOUSAND DOLLARS ($1000) OR (II) THE AGGREGATE AMOUNT OF CAVELA FEES PAID AND/OR PAYABLE BY YOU TO CAVELA IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS, AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANYTHING RELATED TO YOUR USE OF OR ACCESS TO THE GOODS. THE LIMITATIONS OF LIABILITY IN THIS CLAUSE DO NOT EXCUSE OR RELIEVE CAVELA OF ANY LIABILITY RESULTING FROM ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Release. If you have a dispute with one or more Users, whether related to an Order or otherwise, YOU RELEASE US FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Cavela's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Cavela and limits the manner in which you can seek relief from Cavela. Both you and Cavela acknowledge and agree that for the purposes of any dispute between you and Cavela arising out of or relating to the subject matter of these Terms, Cavela's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Cavela and you shall use their best efforts to settle any dispute, claim, question, or disagreement between them arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Cavela will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Cavela will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Cavela may assert claims, if they qualify, in small claims court in San Francisco, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to settle disputes through good-faith negotiations or arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND CAVELA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Cavela are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Cavela over whether to vacate or enforce an arbitration award, YOU AND CAVELA WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Cavela is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Cavela, Inc. 816 Alabama St San Francisco CA 94110 USA postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Cavela to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Cavela agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco, California, or the federal district in which that city falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Cavela.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Cavela may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Cavela agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Cavela, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Cavela, and you do not have any authority of any kind to bind Cavela in any respect whatsoever. You understand that Cavela is not qualified to give either legal advice or tax advice regarding Goods, prospective transactions or otherwise, and shall not rely on Cavela for advice on such matters.
Except as expressly set forth in the section above regarding the arbitration agreement, you and Cavela agree there are no third-party beneficiaries intended under these Terms.
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