Last Updated January 16, 2018
THIS AGREEMENT DOES NOT APPLY TO ANY PRODUCTS THAT MAY BE SOLD OR DISTRIBUTED THROUGH THE WEBSITE, INCLUDING ANY WARRANTIES THAT MAY BE OFFERED IN CONNECTION WITH THE USE THEREOF. IF YOU HAVE ANY QUESTIONS REGARDING RETURNS OR EXCHANGES OF ANY PRODUCT SOLD OR DISTRIBUTED THROUGH THE WEBSITE, PLEASE VISIT OUR RETURNS & EXCHANGES POLICY AVAILABLE AT: www.westmarine.com/CustomerService/Returns-Exchanges.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE, OR TO ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE WEBSITE, WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
Subject to the terms of this Agreement, we grant you a non-exclusive, non-transferable, limited right to access and use this Website and the information and content available on the Website (the “Materials” and together with the Website, the “West Marine Properties”). The rights granted to you in this Agreement are subject to the following restrictions: (a) you may not remove, alter, destroy or obscure any copyright and other proprietary notices contained on or in the West Marine Properties; (b) you may not modify the West Marine Properties in any way or reproduce or publicly display, perform, or distribute or otherwise use them for any public or commercial purpose; (c) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the West Marine Properties or any portion of the West Marine Properties, including the Website; (d) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other West Marine Properties (including images, text, page layout or form) of West Marine; (e) you shall not use any metatags or other “hidden text” using West Marine’s name or trademarks; (f) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the West Marine Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (g) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (h) you shall not access the West Marine Properties in order to build a similar or competitive website, application or service; and (i) except as expressly stated herein, no part of the West Marine Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; . Except as expressly provided herein, we do not grant any express or implied right to you under any patents, trademarks, copyrights or trade secret information. In addition, as a condition of your use of this Website, you represent and warrant to us that you will not use this Website for any purpose that is unlawful, immoral or prohibited by applicable law or by this Agreement. Other than this Agreement and agreements between you and West Marine relating to the sale of products or services to you through this Website, West Marine will not enter into any agreement with you or obligation to you through this Website and no attempt to create such an agreement or obligation will be effective. Use of this Website is unauthorized in any jurisdiction where all or any portion of this Website may violate any legal requirements and you agree not to access this Website in any such jurisdiction. You are responsible for compliance with applicable laws. Any use in contravention of this provision or any provision of this Agreement is at your own risk.
- To the Website. We may terminate, change, suspend or discontinue any aspect of this Website, including the availability of any features of the Website, at any time. We also may impose limits on certain features and services or restrict your access to all or any part of the Website without notice or liability.
- To this Agreement. PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY WEST MARINE IN ITS SOLE DISCRETION AT ANY TIME. When changes to this Agreement are made, West marine will make a new copy of the Agreement available at the Website. West Marine will also update the “Last Updated” date at the top of this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website, and will be effective thirty (30) days after posting notice of such changes on the Website for existing users. West Marine may require you to provide consent to the updated Agreement in a manner specified before further use of the Website is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Website. Otherwise, your continued use of the Website constitutes your acceptance of such change(s).FOR THIS REASON, WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT WHENEVER YOU USE THIS WEBSITE.
In order to access certain features of the Website, you may be required by register for an account on the Website (an “Account”). In registering an Account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the West Marine Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the West Marine Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify West Marine immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or West Marine has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, West Marine has the right to suspend or terminate your Account and refuse any and all current or future use of West Marine Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. West Marine reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the West Marine Properties if you have been previously removed by West Marine, or if you have been previously banned from any of West Marine Properties.
You agree that West Marine and its suppliers own all rights, title and interest in the West Marine Properties. The West Marine names and logos and all other product and service names, design marks and slogans used in connection with the West Marine Properties are the trademarks or service marks of West Marine or one of its affiliates. All other marks are the property of their respective companies.
Description of Products
Descriptions, images, references, features, content, specifications, products, prices, and availability of any products listed for purchase or distribution are subject to change without notice, and our current prices can be found on the Website. While we will make reasonable efforts to fulfill all orders, we cannot guarantee the availability of any particular product listed for purchase or distribution on this Website. We reserve the right to discontinue the sale of any product or service available for purchase or distribution on the Website at any time without notice. Also, please note that some of the products displayed on this Website or in our catalog, including any sale or discounted items, may or may not be available in our West Marine stores and vice-a-versa. We use reasonable efforts to display, as accurately as possible, the colors of the products shown on our Website. However, because the colors you see will depend, in large part, on your monitor and computer, we cannot and do not guarantee that your monitor's display of any color will be accurate.
As a convenience to you, we may provide on our Website links to websites operated by others (“Third-Party Website”). If you click on a link to these other websites, you will leave this Website and West Marine will not warn you that you have left the Website. Please understand that we have no control over the content on any Third-Party Website. West Marine provides links to these Third-Party Websites only as a convenience, and does not review, approve, monitor, endorse, warranty or make any representations with respect to such Third-Party Websites. If you decide to visit any Third-Party Websites, you do so at your own risk and you are solely responsible for taking any protective measures you deem necessary to guard against viruses, worms, trojan horses and other items of a destructive nature. Links do not constitute endorsement of the material on such Third-Party Websites or any association with their operators.
West Marine welcomes and encourages your comments and feedback regarding our Website, our products and our services. We do not want you to, and you should not, send any confidential or proprietary information to us via the Website. You agree that any comments, feedback, ideas, suggestions or the like regarding the West Marine Properties, you submit to West Marine (collectively, "Feedback"), will not be considered confidential or proprietary. You further understand and agree that we shall have no obligation of any kind with respect to such Feedback and that you are and shall remain solely responsible for the content of any such Feedback. By providing West Marine any Feedback, you hereby grant to West Marine an unrestricted, irrevocable, sublicensable, transferable, worldwide, royalty-free license to use, reproduce, publicly display, disclose, publicly perform, create derivative works of, transmit and distribute such Feedback for any purpose. We shall not be under any obligation to maintain any Feedback in confidence; to pay to you any compensation for any Feedback; or to respond to your Feedback. You further recognize that we do not want you to, and you warrant that you shall not, provide any information or materials to us that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another.
The following disclaimers and limitations do NOT affect our Returns & Exchanges Policy available at: www.westmarine.com/CustomerService/Returns-Exchanges. If you have any issues with any product purchased on the Website, you may be able to return it in accordance with our Returns & Exchanges Policy.
THIS WEBSITE, INCLUDING THE INFORMATION THEREIN, IS PROVIDED BY WEST MARINE ON AN "AS IS" AND "AS AVAILABLE" BASIS. WEST MARINE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE, INCLUDING THE INFORMATION AVAILABLE THEREIN. THE WEST MARINE PROPERTIES MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE WEST MARINE PROPERTIES OR THE RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THIS WEBSITE. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, ADVICE, STATEMENT, MEMORANDUM, OR INFORMATION SHALL BE AT YOUR SOLE RISK. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE WEBSITE AND WE MAY MAKE ANY OTHER CHANGES TO THE WEBSITE, THE MATERIALS AND THE PRODUCTS, PROGRAMS, SERVICES OR PRICES (IF ANY) DESCRIBED IN THE WEBSITE AT ANY TIME WITHOUT NOTICE. THIS WEBSITE, WEST MARINE SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF THE APPLICABLE ITEM.
LIMITATION OF LIABILITY
The following limitation of liability does NOT affect our Returns & Exchanges Policy available at: www.westmarine.com/customerservice/returns-exchanges. If you have any issues with any product purchased on the Website, you may be able to return it in accordance with our Returns & Exchanges Policy.
IN NO EVENT SHALL WEST MARINE OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, OR FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, BUSINESS OR PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS WEBSITE, OR THE INFORMATION AVAILABLE THEREIN, THE DELAY OR INABILITY TO USE THIS WEBSITE OR OTHERWISE ARISING IN CONNECTION WITH THIS WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IN NO EVENT WILL WEST MARINE BE LIABLE TO YOU FOR AN AMOUNT EQUAL TO THE GREATER OF (I) THE AMOUNTS PAID BY YOU IN CONNECTION WITH YOUR USE OF THE WEBSITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE, OR (II) FIFTY DOLLARS USD ($50). NOTWITHSTANDING THE FOREGOING, WEST MARINE DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY WEST MARINE’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY WEST MARINE’S FRAUD OR FRAUDULENT MISREPRESENTATION. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.THE FOLLOWING PROVISION IS VOID WITH RESPECT TO RESIDENTS IN THE STATE OF NEW JERSEY: CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree that you will not, under any circumstances attempt to gain access to West Marine Properties, accounts registered to others, or to computers, servers or networks connected to the West Marine Properties by any means other than the user interface provided by West Marine, including, but not limited to, by circumventing or modifying, attempt to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the West Marine Properties; attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Website, overloading, "flooding," "spamming," "mailbombing" or "crashing;" sending unsolicited email, including promotions and/or advertising of products or services; or forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Website or any activity being conducted on this Website.
This Website is controlled, operated and administered by West Marine from its offices within the United States of America. We make no representation that Materials at this Website are appropriate or available for use at other locations outside of the United States and access to them from territories where their contents are illegal is prohibited. You may not use the Website or export the Materials and/or products in violation of U. S. export laws and regulations. If you access this Website from a location outside of the United States, you are responsible for compliance with all local laws. Information, products and Materials published on the World Wide Web may contain references or cross references to our products, programs and services that are not announced or available in your country. Such references do not imply that we intend to announce such products, programs or services in your country.
If you have any questions about this Agreement, please call us at 1-800-Boating and ask to speak to the legal department or write us at:
West Marine Products, Inc.
Attention Legal Department
500 Westridge Dr
Watsonville, CA 95076
Please note, however, that we do not guarantee that we will receive all of your communications or other information timely and we will not be legally obligated to read, act on or respond to any such communication or other information.
You agree to defend, indemnify, and hold West Marine and its parent and affiliates, and its and their respective directors, employees, agents, successors, and assigns (the “West Marine Parties”) harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to your use of this Website. This provision does not require you to indemnify any of the West Marine Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.
Termination of Use
Please read this Arbitration Agreement carefully. It is part of your contract with West Marine and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. By agreeing to arbitration, you are waiving your right to seek relief in a court of law.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by West Marine that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Notwithstanding the foregoing, however, you agree that you will not bring a class action claim in small claims court. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and West Marine, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to West Marine should be sent to: West Marine, 500 Westridge Drive, Watsonville, CA 95076, Attn: Legal Department. After the Notice is received, you and West Marine may attempt to resolve the claim or dispute informally. If you and West Marine do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent CT Corporation System, 818 West Seventh Street – Suite 930, Los Angeles, CA 90017. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with this Agreement, including the Notice Requirement, West Marine shall reimburse you for your AAA filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, West Marine will reimburse your attorneys’ fees.] This option is not appropriate for commercial agreements.
- Additional Rules for Non-Appearance Based Arbitration. . If nonappearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and West Marine, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and West Marine.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and West Marine in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WEST MARINE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- 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, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with West Marine.
- Small Claims Court. Notwithstanding the foregoing, either you or West Marine may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Mateo County, California, for such purpose.
This Agreement shall be governed in all respects by the laws of the State of California, excluding its rules governing conflict of laws.
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
If all or any part of this Agreement is invalid or unenforceable under applicable law, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall govern such use.
This Agreement represents the complete agreement between the parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other terms of this Agreement shall remain in full force and effect.
You agree that no joint venture, partnership, employment or agency relationship exists between you and us as a result of this Agreement or your use of this Website.
The communications between you and West Marine use electronic means, whether you visit West Marine Properties or send Company e-mails, or whether Company posts notices on the West Marine Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from West Marine in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that West Marine provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.