By agreeing to these Terms, you expressly agree to mandatory arbitration to resolve any legal claims against us and waive your right to pursue a jury trial or participate in a class-action lawsuit filed against us. Learn more below in paragraph 22.
3. ELIGIBILITY. You represent and warrant that you are of the age of majority in your jurisdiction and able to enter into this Agreement, have not been previously suspended or terminated by us, and do not have more than one account with us. VITAL is intended for use by individuals 16 or older.
4. JOINING. In order to access and use certain areas of Vital, you will need to register for an account with us. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update your account information as necessary, (c) maintain the security of your password, (d) not share your account with others, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to your account.
5. COMMUNICATIONS. You consent to receive electronic communications from Vital for administrative purposes such as letting you know we've updated our policies or practices. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may opt-out of receiving these promotional emails at any time by following the unsubscribe instructions provided within the communication.
6. PURCHASES. Vital offers various merchandise for sale. Our merchandise offerings are described in the online store accessible through the Site at the time of purchase at the indicated prices. Merchandise availability and prices are subject to change at any time prior to purchase.
A) Billing Information. By providing a payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize us and our third-party payment processor to charge for all purchases including any applicable taxes and other charges. You are responsible for, and agree to pay, all such charges. If your payment cannot be processed or if any amounts you authorize us to charge to your payment method are reversed or charged back for any reason, we may cancel or suspend any undelivered portion of your purchase, make subsequent attempts to charge your payment method, and use any other lawful means to collect payment on any outstanding amounts due to us.
B) Returns, Exchanges, and Refunds. You may return any merchandise received from Vital within 30 days for a full refund or exchange. If you wish to exchange merchandise, please contact us at email@example.com to confirm the availability of the merchandise you wish to obtain in the exchange. If you wish to return a purchase and obtain a refund, please return the merchandise with a copy of your receipt or order confirmation message. All returns should be sent to:
Vital Media Network, Inc.
3002 Dow Avenue, Suite 208
Tustin, CA 92780
Unless the merchandise is defective, we do not offer refunds or exchanges on used or damaged merchandise.
7. GEAR CLUB. Gear Club is a subscription service where you receive six to eight mountain bike merchandise selected by our editors once every other calendar month.
A) Subscription. You agree to pay a $49.95 subscription every other calendar month to subscribe to Gear Club as well as a shipping and handling fee of $5 to locations in the United States, $15 to locations in Canada, and $25 everywhere else. We reserve the right to reject orders from locations with excessive shipping fees as determined in our sole discretion.
B) Automatic Renewal of Subscription. Gear Club is an ongoing subscription service. You will be billed $49.95 every two months until you cancel. When you purchase a subscription, you expressly agree that we are authorized to charge you $49.95 every two months until you or we cancel your subscription. You understand the subscription will remain in effect until you cancel. Gift subscriptions with a specified duration are not covered by this section. Please see section 7(d) for information on gift subscriptions.
C) Cancellation. You may login to your account to terminate your subscription at any time or contact us at firstname.lastname@example.org with your request.
D) Gift Subscriptions. You may give a Gear Club subscription as a gift pursuant to the packages listed in our Gear Club section, which are incorporated herein by reference. Gifts are not refundable or redeemable for cash, unless required by applicable law. You represent and warrant that you have permission to provide us with the contact information of the recipient of the gift so that we may forward confirmation messages, communicate with the individual, and forward Gear Club merchandise.
E) Billing Information. By providing a payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize us and our third-party payment processor to charge for all purchases including any applicable taxes and other charges. You are responsible for, and agree to pay, all such charges. If your payment cannot be processed or if any amounts you authorize us to charge to your payment method are reversed or charged back for any reason, we may cancel or suspend any undelivered portion of your purchase, make subsequent attempts to charge your payment method, and use any other lawful means to collect payment on any outstanding amounts due to us.
F) Pricing and Availability. We reserve the right to modify the Gear Club subscription including the merchandise delivered, and to adjust prices as we may determine in our sole discretion, at any time. If we change the amounts or other charges associated with your then-current subscription, we will provide advance notice of such changes via the email address you have provided us. You may cancel your subscription if you reject the changes.
8. LICENSE. We grant you a non-exclusive, non-sublicensable, non-transferable license and right to use and access the Site. You understand and agree you have no right to modify, edit, create derivative works from, distribute, sell, rent, share, or republish any Site information or materials without our express consent. You further understand no ownership rights in the Site are being granted to you and that we may terminate this license at any time in our sole discretion.
9. USER CONTENT. By posting, uploading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”), you are granting us, our affiliates, officers, directors, employees, consultants, agents, and representatives a license to use the User Content in connection with the operation of our business, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat the User Content. You will not be compensated for any User Content. You agree we may publish or otherwise disclose your name in connection with your User Content. In posting User Content on the Site, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute it.
10. NON-COMMERCIAL USE BY MEMBERS. You expressly agree to use Vital for non-commercial purposes unless first obtaining permission from us. The collection of member data or attempts to contact other members with commercial offers is strictly forbidden and constitutes grounds for termination of your membership. If you wish to advertise on the Site or pursue a commercial communication with members, you must first contact us for permission.
11. NO BACKGROUND CHECKS. Vital does not perform background checks on any individuals accessing the Site. Vital makes no representations, guarantees or warranties regarding individuals who become members, their communications or their actions. If you decide to meet with another member, you assume the risk of doing so and should use common sense safety steps.
12. RELIANCE ON MEMBER STATEMENTS. Members of the Site may communicate with each other in a number of ways. Said communications represent the views of the member making them and are in no way endorsed or supported by Vital. You agree Vital is not responsible for any loss or damage you may incur from relying on said communications by other members.
13. DISPUTES BETWEEN MEMBERS. You acknowledge and expressly agree that any dispute between you and another member is strictly between the two of you. You hereby waive any right to pursue Vital as a defendant in any legal proceedings and agree to indemnify Vital as detailed in these Terms.
14. VITAL USER-GENERATED CONTENT DISCRETION. Vital reserves the right, but not obligation, to refuse to show or delete any and all user-generated content on the Site in its sole discretion without being required to provide notice of such action or the reason for such action.
15. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing or using the Site, you agree to respect the intellectual property rights of Vital and others. Your use of the Site is at all times governed by and subject to laws regarding copyright, trademarks, and other intellectual property laws. You agree not to upload, download, display, copy, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of our or any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit. The burden of proving that any Content does not violate any laws or third party rights rests solely with you.
16. INAPPROPRIATE CONTENT. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content to the Site that (a) is libelous, defamatory, obscene, pornographic, abusive, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or (c) advertises or otherwise solicits funds or is a solicitation for goods or services. We reserve the right to terminate your receipt, transmission, or other distribution of any such material using the Site, and, if applicable, to delete any such material. We intend to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.
17. BLOCKING VISITORS. Vital reserves the right to, in its sole discretion, block any party from visiting the Site.
18. FEEDBACK, SUGGESTIONS, AND BUGS. All existing or future improvements, designs, copyright, processes, know-how or other intellectual property ("Intellectual Property") for the Site are owned by or licensed by us, remain our property and you acknowledge that you have no right, title or interest in or claim to the Intellectual Property. You acknowledge that any improvements to the Intellectual Property discovered or suggested by you pursuant to your use of the Site is our property and you will advise us as soon as possible, assign any such improvements to us, and agree to take any reasonable steps we request to establish a record of the assignment of the Intellectual Property for up to five (5) years after your communication. We will have the sole right to apply for and obtain any copyright protection for such improvements.
19. NO WARRANTIES. WE ARE MAKING THE SITE AVAILABLE TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE.
20. OUR LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. THE PARTIES AGREE THE EXTENT OF ANY MONETARY AWARD SHALL BE LIMITED TO THREE TIMES THE PRICE PAID FOR YOUR MOST RECENT PRODUCE PURCHASE OR $500.00, WHICHEVER IS LESS.
21. EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 19 AND 20 MAY NOT APPLY TO YOU.
22. ARBITRATION AGREEMENT. By agreeing to these Terms and Conditions, you agree to resolve any claim that you may have against Vital on an individual basis in arbitration, as outlined in this Arbitration Agreement section. This will preclude you from bringing any class, collective, or representative action against Vital, and also prevent you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Vital by someone else.
A. Agreement to Binding Arbitration Between You and Vital. You and Vital agree that any dispute, claim or controversy arising out of or relating to (i) these terms and conditions or the existence, breach, termination, enforcement, interpretation or validity thereof, or (ii) your access to or use of the Site or merchandise at any time will be settled by binding arbitration between you and Vital, and not in a court of law.
You acknowledge and agree that you and Vital are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Vital otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Vital each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a 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.
B. Right To Opt-Out. We are providing you with the right to opt-out of this Arbitration Agreement by notifying us in writing within 30 days of opening an account on this Site. To opt-out, send us a message indicating your desire to opt-out using email@example.com.
C. Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitration issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration.
Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant to it. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of California and the parties expressly agree the venue of any action shall be in superior or federal court in Orange County, California, as appropriate for the particular claims asserted.
D. Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). We hereby consent to receive such notifications at firstname.lastname@example.org. The Arbitrator will be either (1) a retired judge or (2) an attorney specially licensed to practice law in the State of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
E. Location and Procedure. Unless you and Vital otherwise agree, the arbitration will be conducted in Irvine, California or, if a location is not available in Irvine, Orange County, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Vital submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim does not exceed $20,000, then the arbitration will be conducted on the basis of documents you and Vital submit to the Arbitrator and each party’s presence by phone or in person, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $20,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
F. The Arbitrator's Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only for the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The parties shall bear their own attorney fees associated with the arbitration proceeding.
G. Fees. Your responsibility to pay any AAA filing, administrative, witness, and arbitrator fees will be solely as outlined in the AAA Rules.
H. Changes. If Vital changes this Arbitration Agreement after the date you first agreed to this Agreement (or to any subsequent changes), you may reject any such change by providing Vital written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided to us at email@example.com. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you agree that you will arbitrate any dispute between you and Vital in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to this Agreement (or to any subsequent changes to the Terms).
I. Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these terms and conditions; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
J. Should a court of competent jurisdiction or arbitrator rule this arbitration clause invalid, the parties agree this Agreement shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to rules regarding conflicts of law. The parties further agree the choice of forum and venue for litigating any such disputes shall be either the superior or federal courts in Orange County, California, as appropriate for the claims asserted.
23. AFFILIATED SITES. We work with a number of partners and affiliates whose websites may be linked to within the Site. Because we do not have control over the content and performance of these partner and affiliate sites, we make no promises or guarantees about the accuracy, content, or quality of the information provided by such sites, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the Site, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that we make no guarantees about, and assume no responsibility for, the accuracy, currency, content, or quality of this third party content, and that, unless expressly provided otherwise, these Terms shall govern your use of any and all third party content.
24. PROHIBITED USES. We impose certain restrictions on your permissible use of the Site. You are prohibited from violating or attempting to violate any security features of the Site, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for merchandise or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Site; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us in providing the Site. You are further prohibited from copying any content on the Site, whether manually or through automated means, without our express permission. Any violation of system or network security may subject you to civil and/or criminal liability.
25. INDEMNITY. You agree to indemnify us for certain of your acts and omissions. You agree to indemnify, defend, and hold harmless us from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Site, your violation of these Terms, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. We will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
26. COPYRIGHT. All contents of Site are Copyright © 2006-19 Vital Media Network, Inc. All rights reserved.
27. SEVERABILITY; WAIVER. If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain in full force and effect. No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
28. NO LICENSE. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by us or by any third party.
29. AMENDMENTS. We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately and when we post them, and apply to all access to and use of our Site thereafter. However, any changes to the dispute resolution provisions set out in Rules and Governing Law will not apply to any disputes for which parties have actual notice on or before the date the change is posted on our Site.
Your continued use of our Site following the revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.