These Terms of Use (the “Terms of Use”) apply to the Pelican Progear website located at www.pelicanprogear.com (the “Site”). The Site is the property of Pelican Products, Inc., its subsidiaries and affiliates (collectively, “Pelican”) and its licensors. Pelican also owns and operates its www.pelican.com website. Please visit Pelican.com for the Terms of Use applicable to the Pelican.com website. Pelican reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE.
You may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of Pelican or others.
Other Applicable Terms and Conditions
Your use of our Site and purchase of Products are also governed by the following terms and conditions:
Website Content and Ownership of the Site
The Site, and all text, files (including CAD files), graphics, photographs, trademarks, logos and other content (collectively, “Content”) contained on the Site is owned, controlled or licensed by or to Pelican, and is protected by United States and international trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Content may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes of authorized or approved in writing by Pelican. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, Content or other proprietary information (including; images, text, page layout, or form) of Pelican without our express written consent.
Except as expressly provided in these Terms of Use, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, translated, transmitted or distributed in any way for publication or distribution or for any commercial enterprise, without Pelican’s express prior written consent.
You may use information on Pelican’s products (such as specification sheets and similar materials) and other materials made available by Pelican for downloading from the Site, provided that you: (1) not remove any proprietary notice language in all copies of such documents; (2) use such information only for your personal, non-commercial informational purpose; (3) make no modifications to any such information; and (4) not make any additional representations or warranties relating to any Pelican products.
Site Security
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding," "spamming," "mailbombing" or "crashing;" (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) 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. Pelican 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 Site or any activity being conducted on this Site. You agree, further, not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents available from Pelican on this Site and other than generally available third party web browsers (e.g., Netscape Navigator or Microsoft Explorer).
Online Payments
You can purchase products and/or services on the Site. We accept credit cards issued by U.S. banks. If a credit card account is being used for a transaction, Pelican may obtain preapproval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that if you are making online payments that (i) any credit card information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit card company, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
Accuracy and Integrity of Information; Colors
Although Pelican attempts to ensure the integrity and accurateness of the Site, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Pelican so that it can be corrected. Information contained on the Site may be changed or updated without notice. Additionally, Pelican shall have no responsibility or liability for information or Content posted to the Site from any non-Pelican affiliated third party.
We have made significant efforts to accurately display the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
Typographical Errors and Incorrect Pricing
In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the incorrect price. We will notify you in the event of a cancellation and credit to your credit card.
Submissions, Reviews, Feedback and other Postings to the Site
If you submit, upload or post any comments, ideas, suggestions, information, files, images or other materials to us or our Site (“Submissions”), you agree not to provide any Submissions that (1) are defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violate or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contain or transmit a virus or any other harmful component. You agree not to contact other site users through unsolicited e-mail, telephone calls, mailings or any other method of communication. Pelican shall have a royalty-free, irrevocable, transferable right and license to use the Submissions however Pelican desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such Submissions and/or incorporate such Submissions into any form, medium or technology throughout the world. Pelican is and shall be under no obligation (1) to maintain any Submissions in confidence; (2) to pay to you any compensation for any Submissions; or (3) to respond to any user Submissions.
To the extent any Submissions include ideas that may relate to products, inventions or patentable subject matter, you agree to comply with our Policy on Ideas Submitted by Persons Outside the Company.
Pelican does not regularly review posted Submissions, but does reserve the right (but not the obligation) to monitor and edit or remove any Submissions submitted to the Site. You grant Pelican the right to use the name that you submit in connection with any Submissions. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Submissions you submit. You are and shall remain solely responsible for the content of any Submissions you make. Pelican and its affiliates take no responsibility and assume no liability for any Submissions submitted by you or any third party.
You agree to defend, indemnify and hold Pelican harmless from and against all third party claims, damages and expenses (including reasonable attorneys fees) against or incurred by Pelican arising out of any Submissions you post or allow to posted to the Site.
Claims of Copyright Infringement and Notice of Alleged Infringement
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice ("Notice") complying with the following requirements.
Notices of Alleged Infringement for Content Made Available Through the Pelican Site
We disclaim any responsibility or liability for copyrighted materials posted on our site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below. Pelican respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Pelican’s Designated Copyright Agent, identified below.
- Identify the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
- Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Copyright Agent:
General Counsel,
23215 Early Avenue,
Torrance,
California 90505
Links to Other Sites
This Site may contain links to other independent third-party Web sites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Pelican’s control, and Pelican is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES.
WARRANTY DISCLAIMERS
THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” BASIS. PELICAN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WARRANTIES RELATING TO PRODUCTS OFFERED, SOLD AND DISTRIBUTED BY PELICAN ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS.
LIMITATION OF LIABILITY
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL PELICAN BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF PELICAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE.
Export Restrictions; Indemnity
The manufacture, shipment, and delivery of all Products are subject to any prohibition, restriction, priority, allocation, regulation or condition imposed by, or on behalf of, the United States. You agree that you shall comply with all applicable import, export, and anti-corruption statutes and regulations of the United States, including without limitation, the Foreign Corrupt Practices Act. You agree to indemnify and hold us harmless from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control laws and regulations.
Warranty / Product Support
We will try work in good faith to resolve any issue you have with Site, including products and services order or purchased through the Site, if you bring that issue to the attention of our customer service department. You can access our product warranties here.
Submission To Jurisdiction & Venue; Governing Law; Limitation Of Action
Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, these Terms of Use shall be brought against either of the parties in the state or federal courts located in California, and each of the Parties consents to the jurisdiction of such courts in any such action or proceeding and waives any objection to venue, including any defense of inconvenient forum. A final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.
These Terms of Use shall be governed by the laws of California without giving effect to any choice or conflict of law principle, provision or rule, whether of California or any other jurisdiction that would cause the application of the laws of any jurisdiction other than California. The United Nations Convention on the International Sale of Goods shall not apply to these Terms of Use.
Any and all claims arising out of or related to these Terms of Use, or any agreement related to these Terms of Use or executed concurrently with this Agreement, or the relationship of the parties shall be barred unless commenced within one (1) year from the date the complaining party knew or should have known of the facts giving rise to such claim, or the statute of limitations applicable to that claim under California law, whichever is shorter.
Patent Information
Pelican Products, Inc. owns numerous patents and pending patent applications throughout the world. Various designs and products of Pelican Products, Inc., its affiliates and its subsidiaries may be protected by one or more patents or covered by one or more pending patent applications. A list of our patents and patent applications may be accessed here.
Filtering of Incoming E-mail
Pelican, as owner of the Site, and Pelican’s Site hosting services provider, as owner of the equipment and other resources utilized to provide services, have the legal right to block electronic communications from other entities on the Internet.
Users should be aware that such blocking or filtering may take place if deemed necessary by designated members of Pelican or its Site hosting services provider (or a third party chosen by Pelican or its Site hosting services provider and made known to the user) Whenever possible, the party being blocked shall be made aware of such action before it occurs.
Right to Damages
Pelican and its Site hosting services provider consider most instances of unsolicited bulk e-mail to be a theft of services and reserve the right to prosecute originators of same in a court of law.
Pelican and its Site hosting services provider reserve the right to collect damages (e.g., software, hardware, and man hours) if any harm is done to the Site, or related network or equipment, which is attributable to user activity proscribed by these terms of use and which requires repair or reconfiguration of any kind.
In regard to unacceptable user activity in violation of these Terms of Use or applicable law, if deemed appropriate by Pelican or its Site hosting services provider, the user will be billed not less than $500 per individual complaint received by Pelican or its Site hosting services provider.
In addition, Pelican and its Site hosting services provider reserve the right to collect punitive damages in recompense for any perceived loss of brand reputation as permitted under applicable law.
Nothing contained in this document shall be construed to limit action Pelican or its Site hosting services provider may take or remedies available to us in any way with respect to any conduct proscribed by these Terms of Use. Pelican and its Site hosting services provider reserve the right to take any additional actions in accordance with applicable law we may consider appropriate with respect to such conduct, including without limitation taking action to recover costs and expenses of identifying offenders and removing them from our network or systems, and levying cancellation charges to cover costs in the event of disconnection for the causes outlined in these Terms of Use. In addition, Pelican and its Site hosting services provider reserve at all times all rights and remedies available to us with respect to such conduct at law or in equity.
Miscellaneous
If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between you and Pelican with regard to your use of the Site. Pelican’s or its Site hosting services provider’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Pelican or its Site hosting services provider of any provision or any right either may have to enforce these Terms of Use, nor shall any course of conduct between Pelican and you or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.
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- These terms constitute an offer by Pelican Products Inc. and/or any of its affiliates and/or subsidiaries (“we”, “us” or “our”) to sell goods to you and shall govern all sales sold through any website (“Site”) on which we post these conditions. Sales through this Site are also governed by our Website Terms of Use. Collectively “we” and “you” are the Parties to this Agreement.
- An order submitted by you constitutes an offer by you to us to purchase Products or Services on these Terms and is subject to our subsequent acceptance.
- Our acceptance of any order is limited to these terms and conditions. These terms, when accepted by you explicitly (e.g. when you click “Submit Order” to complete your purchase), by acceptance of goods or services, or otherwise, shall constitute the entire agreement between the Parties on the subject hereof, superseding all prior oral or written communications and negotiations.
- Any prices, quotations and descriptions made or referred to on the Site are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express acceptance of your order.
- While we make every effort to ensure that items appearing on the Site are available, we cannot guarantee that all items are in stock or immediately available when you submit an order. We may reject any order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment made for that item.
- If you are an authorized Dealer and have a fully signed Agreement currently in effect with us, then any terms in that Agreement which conflict with these terms shall be applied to your purchase. All other terms and conditions herein shall apply.
- BY PURCHASING PRODUCTS FROM US, YOU CONFIRM THAT YOU UNDERSTAND, ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
BUYER’S REPRESENTATIONS:
- You represent that information provided by you when placing your order is up-to-date, materially accurate and is sufficient for us to fulfill your order.
- Unless agreed otherwise or required by applicable law, any warranties provided only extend to you on the understanding that you are a user and not a reseller of the products purchased.
- No warranty, commitment or any other obligation should ever be assumed by you on our behalf without our express prior written consent.
CANCELLATION /CHANGE:
- Orders are not subject to cancellation, change, or termination, except as expressly permitted or as set forth in the applicable Return Policy.
- If you file a bankruptcy petition or are the subject of an assignment for the benefit of creditors, whether voluntarily or involuntarily, or we have cause to believe that you are unable to pay your debts as they fall due; then, without prejudice to any of our other rights, we may: (a) stop any Products in transit; (b) suspend further Product deliveries; and/or (c) by written notice to you, terminate your order and all or any other contracts between us and you.
DELIVERY:
- Delivery dates are quoted in good faith, but are not guaranteed. We cannot assume any risk or liability for delay or nonfulfillment of shipments due to acts of God, war, strikes, breakdown, fires, government orders, or other causes beyond our control.
- Delivery shall be to a valid address in the Territory submitted by you and subject to acceptance ("Delivery Address"). You must check the Delivery Address on any acknowledgement or acceptance we provide and notify us without delay of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
- If you refuse or fail to take delivery of products provided in accordance with these Terms, any risk of loss or damage to the products shall nonetheless pass and without prejudice to any other rights or remedies we have, when the products are delivered to a shipper for delivery to the Delivery Address.
- Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject any shipment in whole or in part by reason of short delivery unless you notify us in writing of any claim within 7 days of delivery.
- Where we deliver product in installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.
DESIGN CHANGES: Except as otherwise agreed expressly between the Parties, we may at any time furnish goods that include changes in design and construction of such goods as shall constitute an improvement in our judgment. We may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
ERRORS AND OMISSIONS: We reserve the right to correct clerical errors and omissions.
GOVERNMENT REGULATIONS:
- Manufacture, shipment, and delivery are subject to any prohibition, restriction, priority, allocation, regulation or condition imposed by, or on behalf of, the United States.
- You agree that you shall comply with all applicable import, export, and anti-corruption statutes and regulations of the United States, including without limitation, the Foreign Corrupt Practices Act. You agree to indemnify and hold us harmless from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control laws and regulations.
INTELLECTUAL PROPERTY: Nothing herein is intended to grant any rights to you under any patent, trademark, trade secret, or copyright of ours. You shall acquire no rights or interests in any of our products, property, or intellectual property.
PRICES:
- Prices payable for products are those in effect at the time your order is accepted, unless otherwise expressly agreed. We reserve the right to notify you of any mistakes in Product descriptions or errors in pricing prior to shipment. If you choose to continue with fulfillment of the order after notification, you acknowledge that the product will be provided in accordance with such revised description or corrected price.
- Payments on the Site must be made by credit cards issued by U.S. banks. If a credit card account is being used for a transaction, Pelican may obtain preapproval for an amount up to the amount of the payment.
- You represent and warrant that (i) any credit card information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit card company, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
- No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though title in those Products may not yet have passed to you.
SUBMISSION TO JURISDICTION & VENUE; GOVERNING LAW; LIMITATION OF ACTION:
- Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this agreement shall be brought against either of the Parties in the state or federal courts located in California, and each of the Parties consents to the jurisdiction of such courts in any such action or proceeding and waives any objection to venue, including any defense of inconvenient forum. A final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.
- This Agreement shall be governed by the laws of California without giving effect to any choice or conflict of law principle, provision or rule, whether of California or any other jurisdiction that would cause the application of the laws of any jurisdiction other than California. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
- Any and all claims arising out of or related to this Agreement, or any agreement related to this Agreement or executed concurrently with this Agreement, or the relationship of the Parties shall be barred unless commenced within one (1) year from the date the complaining party knew or should have known of the facts giving rise to such claim, or the statute of limitations applicable to that claim under California law, whichever is shorter.
SEVERABILITY: If any of the provisions of these Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms and Conditions, so that these Terms and Conditions shall remain in full force and effect.
SHIPPING:
- All orders are shipped FOB Santa Ana, CA, unless otherwise specified. Risk of loss of the goods shall pass to you at the time the goods are tendered for shipment.
- The places that we deliver to are listed on the Site ("Territory"). Unless otherwise specified, prices quoted are (a) exclusive of the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on the Site); and (b) exclusive of any tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of Products as such costs are specified by us on the Site when you submit your purchase order.
WARRANTIES AND LIMITATION OF REMEDIES: Our warranty for the applicable product can be found here. The terms of the applicable warranty found on the Site are incorporated into these terms and conditions of sale by reference.
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