Terms of Service
TERMS AND CONDITIONS OF USE
Welcome to our website. This site, www.bigfishgamesgear.com (the "Site"), is maintained as a service to our customers. By using the Site, you agree to comply with and be bound by the following terms and conditions of use (the “Agreement”). Please review the Agreement carefully. If you do not agree to the terms of the Agreement, you may not use this site. References in this Agreement to “we”, “us”, and “our” refer to Canary, LLC (“Canary”), the owner of the Site. This Agreement is effective as of August 24, 2010.
1. Agreement. This Agreement specifies the terms and conditions applicable to your access and use of the Site. This Agreement may be modified at any time by Canary upon posting of the modified agreement. Canary will post a notice on the Site any time this Agreement has been changed or otherwise updated. Any such modifications shall be effective immediately unless otherwise provided in writing. It is your responsibility to review the Agreement periodically, and if at any time you find the Agreement unacceptable, you must immediately leave the Site and cease all use of the Site. Each use by you shall constitute and be deemed your unconditional acceptance of this Agreement, as amended.
2. Intended Audience. The Site is intended for adults only. BY USING THE SITE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.
3. Privacy. Your visit to our site is also governed by our Privacy Policy. Please review our Privacy Policy here.
4. Your User Account. When you are required to open an account to use or access the Site, you must complete the registration process by providing the complete and accurate information requested on the registration form. You will also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify Canary immediately on any unauthorized use of your account, user name, or password. Canary shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Canary, and our officers, managers, employees, agents, members, and affiliates, due to someone else’s use of your account or password.
5. Ownership. All content included on this site is and shall continue to be the property of Canary and/or Big Fish Games, Inc., and is protected under applicable copyright, patent, trademark, and other proprietary rights. In particular, Big Fish Games™ and the associated logo are trademarks of Big Fish Games, Inc. Other product and company names mentioned on this Site may be trademarks of their respective owners. Any copying, redistribution, use or publication by you of any such content or any part of the Site is prohibited, except as expressly permitted in this Agreement. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of this site.
6. Site Use. Canary grants you a limited, revocable, nonexclusive license to use this site solely for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the site, reverse engineer or break into the site, or use materials, products or services in violation of any law. The use of this website is at the discretion of Canary, and Canary may terminate your use of this website at any time.
7. Compliance with Laws. You agree to comply with all applicable laws regarding your use of the Site.
8. Indemnification. You agree to indemnify, defend and hold Canary, and our officers, managers, employees, agents, members, and affiliates (including, but not limited to, Big Fish Games, Inc.), harmless from any liability, loss, claim and expense, including reasonable attorney's fees, related to your violation of this Agreement or use of the Site.
9. Terms of Sale. By ordering products or services through the Site, you accept and agree to be bound by the following terms of sale.
Payment terms are within Canary’s sole discretion, and, unless otherwise agreed to by Canary, payment must be made at the time of purchase. Your order is subject to cancellation by Canary at Canary’s sole discretion. In the event of cancellation, you will receive a full refund. Canary is not responsible for pricing, typographical, or other errors in any offer by Canary. Canary reserves the right to cancel any orders resulting from such errors.
Shipping and handling are additional unless otherwise expressly indicated in writing. You are responsible for sales and other taxes associated with the order. Shipping dates are estimates only.
Canary will accept returns of: (1) items that are not worn or damaged; and (2) items that have been damaged during shipment to you. A return authorization number is required prior to the return. You are responsible for the cost of shipping returns to Canary. All sales are final except as stated herein or otherwise agreed to by Canary in writing.
THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE GOODS PROVIDED ON SITE. CANARY DISCLAIMS ANY WARRANTY OF ANY OTHER KIND, INCLUDING ANY WARRANTY THAT THE GOODS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE.
10. Disclaimer. THE INFORMATION ON THIS SITE IS PROVIDED ON AN ''AS IS,'' ''AS AVAILABLE'' BASIS. YOU AGREE THAT USE OF THIS SITE IS AT YOUR SOLE RISK. CANARY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL CANARY OR ITS AFFILIATES BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE SITE, YOUR SITE USE, OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CANARY’S AGGREGATE LIABILITY TO YOU EXCEED THE TOTAL AMOUNT PAID BY YOU TO CANARY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE.
12. You May Have Other Rights. You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in this Agreement that directly conflict with such laws may not apply to you.
13. Limit on Time to Bring Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site must be filed within one (1) year after such claim or cause of action arose or be forever barred.
14. Use of Information. Canary, reserves the right, and you authorize us, to use and assign all information regarding Site uses by you and all information provided by you in any manner consistent with our Privacy Policy.
15. Termination of Your Account. If you violate the letter or spirit of this Agreement, or otherwise create possible legal exposure for us, we can stop providing all or part of the Site to you. For example, if you repeatedly infringe other people's intellectual property rights, we will disable your account when appropriate. You may also delete your account or disable your account at any time.
16. Applicable Law, Jurisdiction. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the parties arising under or growing out of this Agreement, shall be governed by the internal laws of the State of California, without regard to California’s choice-of-law provisions. The parties hereby consent to the jurisdiction of the State of California, and any disputes relating to this Agreement shall be resolved in the courts of the State of California, to the exclusion of any other jurisdiction. The parties agree that this Agreement has been entered into in Contra Costa County, California, and hereby stipulate to venue in the Superior Court of California, County of Contra Costa, or the U.S. District Court for the Northern District of California.
17. Attorneys’ Fees. In the event any party hereto shall bring any action or proceeding against any other party (or permitted assignee) in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party is entitled. This provision regarding attorneys’ fees and costs is applicable to the entire Agreement.
18. Interpretation. If any provision of this Agreement is found to be invalid or unenforceable, either in its entirety or by virtue of its scope or application to given circumstances, that provision shall be deemed modified to the minimum extent necessary to render the same valid or as not applicable to the given circumstances, or shall be excised, as the situation may require. All terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms and conditions to give them such effect. You agree that this Agreement may be assigned by Canary in our sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, beneficiaries, successors, and assigns.
19. Entire Agreement. Together with our Privacy Policy, this Agreement constitutes the entire agreement between you and Canary for governing your use of the Site, and supersedes any prior agreements between you and Canary for that purpose. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same provision or of any other provision.
20. Copyrights and Copyright Agent. If you believe your work has been copied in a way that constitutes copyright infringement, please provide a notice containing all of the following information to our Copyright Agent:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) A description of the copyrighted work that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Site;
(d) Your address, telephone number, and e-mail address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent for notice of claims of copyright infringement on the Site is Andrew Berg, who can be reached as follows:
By Mail: 673 San Ramon Valley Blvd, Danville CA 94526
By Phone: 925-314-2340
By e-mail: bigfish@canarymarketing.com