June 30, 2018
The following terms and conditions (“Terms”) govern all use of the MalibuMakos.com website and all content, services, and products available at or through the website (our “Services”). Our Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Makos Privacy Policy) and procedures that may be published from time to time by Makos (collectively, the “Agreement”). You agree that we may automatically upgrade our Services, and these Terms will apply to any upgrades. Please read this Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to become bound by the Terms of this Agreement. If you do not agree to all the Terms of this Agreement, then you may not access or use any of our Services. If these Terms are considered an offer by Makos, acceptance is expressly limited to these Terms. Our Services are not directed to children. Access to and use of our Services is only for those over the age of 13 (or 16 in the European Union). If you are younger than this, you may not register for or use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older (16 years or older in the European Union). Use of our Services may require a MalibuMakos.com account. You agree to provide us with complete and accurate information when you register for an account. You will be solely responsible and liable for any activity that occurs under your username. You are responsible for keeping your password secure.
1. MalibuMakos.com.
- Responsibility of Contributors. If you comment on a blog, post material to MalibuMakos.com, post links on MalibuMakos.com, or otherwise make (or allow any third party to make) material available (any such material, “Content”), you are entirely responsible for the content of, and any harm resulting from, that Content or your conduct. That is the case regardless of what form the Content takes, which includes, but is not limited to text, photo, video, audio, or code. By using MalibuMakos.com, you represent and warrant that your Content and conduct do not violate these Terms. By submitting Content to Makos for inclusion on our website, you grant Makos a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content. This license allows Makos to make publicly-posted content available to third parties selected by Makos so that these third parties can analyze and distribute (but not publicly display) your content through their services.
2. Copyright Infringement and DMCA Policy.
As Makos asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by MalibuMakos.com violates your copyright, you are encouraged to notify Makos. Makos will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Makos will terminate a visitor’s access to and use of the website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Makos or others. In the case of such termination, Makos will have no obligation to provide a refund of any amounts previously paid to Makos.
3. Intellectual Property.
This Agreement does not transfer from Makos to you any Makos or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with Makos. Malibu Makos, MalibuMakos.com, the MalibuMakos.com logo, and all other trademarks, service marks, graphics and logos used in connection with MalibuMakos.com or our Services, are trademarks or registered trademarks of Malibu Makos or Malibu Makos’s licensors. Other trademarks, service marks, graphics and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services grants you no right or license to reproduce or otherwise use any Makos or third-party trademarks.
4. Changes.
We update our Services from time to time, and that means sometimes we have to change the legal terms under which our Services are offered. If we make changes that are material, we will let you know by posting on one of our blogs, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the dispute arose.
5. Termination.
Makos may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your MalibuMakos.com account (if you have one), you may simply discontinue using our Services. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
6. Disclaimer of Warranties.
Our Services are provided “as is.” Makos and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Makos nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk.
7. Jurisdiction and Applicable Law.
Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of our Services will be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Los Angeles County, California.
8. Arbitration Agreement.
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Los Angeles, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
9. Limitation of Liability.
In no event will Makos, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Makos under this Agreement during the twelve (12) month period prior to the cause of action. Makos shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
10. General Representation and Warranty.
You represent and warrant that your use of our Services:
- Will be in strict accordance with this Agreement;
- Will comply with all applicable laws and regulations (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection); and
- Will not infringe or misappropriate the intellectual property rights of any third party.
11. Indemnification.
You agree to indemnify and hold harmless Makos, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of our Services, including but not limited to your violation of this Agreement.
12. Miscellaneous.
This Agreement constitutes the entire agreement between Makos and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Makos, or by the posting by Makos of a revised version. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Makos may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
